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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
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Stephen N. Zack
Summary of Interview (November 30, 2001)
Zack explains how he got involved in the post-election process-he began by sitting in
on Judge Middlebrooks's hearing and then being asked on short notice to present a re-
hearing representing Gore in Miami-Dade County (that county's canvassing board had
just voted not to have a recount). He talks about using the Florida Supreme Court's
motto in the hearing: "Soon enough, if correct." His thinking was, according to the
motto, "Why is there a rush to judgment? Should we not count all the votes?" He adds,
"We thought that if we had a liberal standard and a full recount, that we would win." He
describes the Miami-Dade County canvassing board member, Myriam Lehr, as being
"under a lot of pressure" but changing her vote which broke the tie whether or not to
continue the recount.
Zack speaks of the "rent a mob" trying to shut down the Miami-Dade recount. He
recounts that after the successful hearing about getting the canvassing board to do the
recount, he is subpoenaed on the following Saturday night to appear in court on Sunday
at 7:30 a.m. (because the Republicans have filed an injunction, but the recount
continues). He then discusses flying to New York after believing the recount issue in
Miami-Dade has been resolved only to learn that it stopped and that "there has been a
riot." He quickly returns to Miami and goes through more legal entanglements, which
ultimately leads to the Florida Supreme Court. He says that "had they [Florida Supreme
Court] acted earlier, we never would have gotten to the problem that we ended up
Zack talks about David Boies asking him to help try this case before the Florida
Supreme Court. Gore's legal team had to decide whether or not to challenge Judge
Sauls's decision. He believes Gore team should have had Sauls recused but Gore
decided against this move as part of his maintaining good public relations. He gives
insight into Joe Geller getting arrested in Miami for having taken what appeared to be a
ballot--except it was a sample ballot. He describes the scene as "mob mentality." He
feels that the Miami-Dade County Canvassing Board did have enough time to count all
the under-votes because "there were plenty of people willing to volunteer." He
comments that Judge Lewis had these under-votes counted in just one day--so it could
be done. He states that the canvassing board claims that they did not have time, but
that "the real reason is, [they] did not want to do it."
Zack says Gore "probably" should have gone to the contest phase earlier, as Dexter
Douglass had suggested to Gore. Gore team's strategy was to "get to the Supreme
Court of Florida as soon as possible"--never dreaming that the U.S. Supreme Court
would step in. He cites Douglass's remark--when asked if he thought the U.S. Supreme
Court would rule on this case-about how this Supreme Court believes in federalism--it
is clearly a state question. He relates that he did not see Judge Sauls holding up the
case and the Gore team did not care how he ruled because the (Florida) "Supreme
Court was not going to give any credence one way or another to the way this came out."
He comments that had Judge Sauls been replaced by another judge, it might have
been "an easier trial" and "we would have come up as the appellee as opposed to the
appellate." He adds, "Our strategy was perfect until the Supreme Court of the United
States stepped in."
Zack discusses the voting machine experts brought in to testify and remembers
speaking to Republican laywers after the case. Both sides agreed "that the best
witnesses for each side was the other party's experts." He presents the anecdote about
bringing Vote-O-Matic machines into Judge Sauls's courtroom and shaking them to
show the chad buildup. He speaks about John Ahmann (Republican witness)--the
designer of the Vote-O-Matic machine--who testified that a hand count should be
instituted in a close vote using Vote-O-Matics.
Zack states that he knew how Judge Sauls was going to rule given his background. He
feels that Sauls's order to send the Miami-Dade ballots to Tallahassee was
unnecessary, but "it turned out to be just fine--though it was kind of silly." He remarks
that the Sunshine Law with cameras in the courtroom had an "impact" because the
world was watching, but on a personal level "it had no effect." He is proud of the fact
that the entire Gore team never criticized the judiciary--as the Bush team did. He
comments on the impact of the Sauls trial and the Florida Supreme Court. He states
that "the Florida Supreme Court decision was absolutely legally correct" and "that the
United Stae Supreme Court decision was legally incorrect" because "they [U.S.
Supreme Court justices] say that it [Bush v. Gore] has no precedential value."
Zack states that the U.S. Supreme justices were saying, in effect, that "the end justified
the means" in its 5-4 ruling. He comments on the revealing moment when the Gore
team realized that they were going to lose: when the U.S. Supreme Court "grants
certiorarii]. He states that "there is no question that the majority of the people in
America intended to vote for Al Gore to be president of the United States." He says that
"when people walked out of the ballot box after voting, the majority of people thought
they voted for the Vice-President." He comments on Judge Middlebrooks's decision
that it "was one of the most well-reasoned opinions of all opinions entered."
Zack assesses Katherine Harris's performance "as partisan" and that "she should have removed
herself from the process." He feels Harris should have been more flexible because "there was no
rush to judgment here." He remarks that the "two battle calls" throughout the entire thirty-day
process were: "let us count all the votes" [from the Democrats] and "they have been counted and
recounted" [from the Republicans]. He thinks the November 26 date was made as a "remedy"
that was appropriate. He feels that the Florida Supreme Court should have explained that date
choice to the U.S. Supreme Court--even though it might not "have made any difference"--but
"maybe it would have made a difference with [Justice] Kennedy." He talks about predicting the
Florida Supreme Court's 4-3 vote (ordering the manual recount of under-votes) and even
predicted how each justice was going to vote.
Zack discusses Chief Justice Charles Wells's dissent in the 4-3 decision. He reports that once
this decision was made that the U.S. Supreme Court would not act upon it, but "it was a total
shock that they acted." He comments on the standard of voter intent. He does not feel that the
U.S. Supreme Court justices will be favorably viewed in the 5-4 decision: "I do not think history
will judge them kindly." He describes the personal impact of this decision: "I am deeply
disappointed in the United States Supreme Court for making what I believe was a political
decision." He feels that there was a constitutional crisis--but it is "not justification for making
new law or ignoring old law." He sees "that history again is going to judge what happened here
as the ends justifying the means." He claims that another impact on Florida is that "the
battleground will always be Florida." He claims that "it was a great civics lesson" and everyone
now knows that every vote counts. He is proud of the attorneys' professionalism and that "there
is a reason we turn to our lawyers as opposed to generals" and "you have got to accept as things
[judicial rulings] that you cannot control."
Interviewee: Stephen N. Zack
Interviewer: Julian Pleasants
Date: November 30, 2001
P: This is Julian Pleasants. It is November 30, 2001. I am in Miami with Steve
Zack. Explain how you first got involved in the legal issues with the 2000
Z: I will be happy to do that. I first got a call the night of the election from
Tennessee. A lawyer friend of mine, Chris Cort called me and said, Steve they
are stealing the elections and we are going to need some lawyers to help. I said,
fine, but I am very, very busy. If there is something specific, let me know. At the
time, the ballots were missing from Fort Lauderdale. There was one precinct that
was actually missing [ballots]. I asked him whether he wanted me to call Ken
Jenne [Florida state senator, 1978-1998; Broward County sheriff, 1998-present].
I have known [Ken] all of my life.
P: He is a former state senator.
Z: Yes, and he is a sheriff. To tell you how far back we go, he and I were co-
chairmen of Claude Pepper's [U.S. Representative, 1963-1989; U.S. Senator,
1936-1951; Florida state representative, 1929-1930] congressional campaign in
1972 as kids. I was Claude Pepper's legislative aide in Washington. [Calling
Ken] was not necessary, [the Fort Lauderdale ballots] were found. I never talked
to Ken about the matter. The first hearing [was] in front of Don Middlebrooks
[Judge, U.S. District Court] in Miami. Don and I had gone to college together.
He was [a] federal judge down here. I knew a number of my friends were going
to be involved in that hearing. Steve Uhlfelder [attorney, Holland and Knight] was
going to be representing some of the broadcasters. Again, Don and I and Steve
were good friends in college days. A number of people, Bruce Rogow [attorney
for Al Gore in 2000 election] and Al Diamond, lots of folks were people I knew. I
woke up and I said, I think I am just going to stroll down to the hearing and see
how it goes. I walked into the courtroom and I think I got the last seat before it
filled up completely and then there was overflow crowd.
P: This was the hearing for the brief filed by George W. Bush [U.S. President, 2001-
present; Texas governor, 1995-2001] to stop the recount?
Z: That is correct. That was the first time I had actually met Ted Olsen [attorney for
George W. Bush in 2000 election]. He argued that matter for them down here.
Don Middlebrooks asked a lot of questions that a number of other courts should
have asked, in my opinion, which I will go into in a minute. After the hearing,
Kendall Coffey [attorney for Al Gore in 2000 election] came up to me Kendall
was an old friend of mine and said, Steve, we lost the hearing in front of the
canvassing board yesterday, would you mind coming down and looking at it and
rearguing it? I said, Kendall I am very busy. I was in the middle of a couple of
trials. He said, it is only going to take fifteen minutes. I went down and that
fifteen minutes lasted a month. I basically did no work other than the election for
the next thirty days. I will get to that in a second. The Don Middlebrooks hearing
was a very interesting hearing. There was an issue that often came up in some
of the appellate questioning and even [with] some of the historians looking at it as
well, [and that was] why we did not ask for a challenge of all the different circuits.
That was argued in part by Olsen, as I recall. Middlebrooks asked him and said,
you had an opportunity to challenge any ones you wanted to challenge did you
not? You chose not to challenge them. They could have challenged all of them
at that time.
The Democrats were not the only people that could have challenged them. They
said, it would have been fair to do them all. If we do them, we should do them
all. Well, they could have done them all. They could have done them all from
day one, but they chose not to as a strategic decision. As you recall, somewhere
down the line towards the end of the whole process, even the vice-president
[Gore] offered to have a total recount. Going back to your initial question about
the canvassing board, I went down to Kendall's office and I looked at what had
been argued [it] and got my interest. I said I would go ahead and argue it the
next day. I went down and argued it. I guess I understood in part how important
it was to the nation. When I walked into the room down at the Dade County
office building it was the third floor or ninth floor it was obviously very packed.
Another thing [that] happened during the course of my argument, [is that I found
out] that apparently it was being televised nationally [and] live, which I did not
know [at the beginning]. The three panelists [were] all [people] I had known in
varying degrees. Larry [Lawrence] King [Miami-Dade County judge; member,
Miami-Dade canvassing board] I had known for many, many years. I knew his
father very well, a fine jurist. I knew Larry since he was a young lawyer. I
thought he displayed enormous courage during the course of the proceedings.
[David] Leahy [Supervisor of Elections, Miami-Dade County; member, Miami-
Dade County canvassing board] I had actually had as a witness and cross-
examined from time to time because I do a lot of reapportion work. I represented
the Florida Senate in reapportionment cases, the DeGrandy [Miguel DeGrandy,
Miami attorney] case for ten years. I had represented the City of Miami Beach in
a reapportionment challenge to their districting and Leahy was a witness, so I
P: He is the elections supervisor.
Z: Myriam Lehr [Miami-Dade County judge; member, Miami-Dade canvassing
board] I knew because she is a Cuban Jew and I am a Cuban Jew. My mother is
Cuban and I was born in the United States but I lived in Cuba until I was
fourteen, so I am a Jewbano as we call ourselves. I had known Myriam Lehr and
had actually appeared before her in matters. She was the appointed person.
There is a lot of background to that. I also had represented Gwen Margolis
[Miami-Dade County Commissioner, 1994-present; Florida state senator, 1980-
1994, president of Florida senate, 1990-1991] when she was president of the
Senate. When she was the president of the Senate, she hired me to represent
the Senate on the reapportionment DeGrandy case. I had been her lawyer and I
knew her very well and had high regard for her. Originally, she was the one who
was supposed to have Myriam Lehr's seat. Because there were other
commissioners who were up for election in the primary, she was told that she
had a conflict and she could not sit. Then, since their elections were over, she
wanted that seat. She called me and said, I want to sit on that. Can you
represent me? I said, no, I cannot represent you. I represent the vice-president.
I gave her names, Chesterfield Smith [President of the American Bar
Association, 1973-1974; President of the Florida Bar Association, 1964-1965]
was one of the people. I think Chesterfield wrote a letter to Judge [Joseph P.]
Farina [judge, Dade County Circuit Court] who was the chief judge [and] actually
has to decide all these things. For some reason, and I have no knowledge of it, it
was never acted on. She wanted to go back on and replace Myriam Lehr, but
that did not occur. I made the argument and we had Roberto Martinez and
Miguel DeGrandy who were the opposite side from me. Kendall and myself and
Joe Geller were the three people representing [the Democratic party].
P: Joe Geller was the head of the Miami-Dade Democratic party, correct?
Z: Yes, sir. He was representing the Democratic party.
P: Let me get some dates straight here. The canvassing board is going to meet
several times. At this point, it must be around November 14, is that right?
Z: It is the day after the hearing in front of Don Middlebrooks.
P: At this point they had already voted not to have a recount, so now you are
presenting a re-hearing.
Z: I presented the re-hearing. I started with the motto of the Supreme Court of
Florida. The English translation of that is: soon enough, if correct. It is actually
on the floor of the Supreme Court building. It is [on] a mosaic when you walk in.
That is the motto of the court. It [meant], why is there a rush to judgement?
Should we not count all the votes? You have a full transcript, I presume, or you
can get a full transcript of what my argument was so I am not going to repeat it.
It was a very hotly contested argument and I had high regard for Bobby Martinez
who had been my associate when he first started practicing law. He mentioned
that during the course of the proceedings. Miguel DeGrandy, who was the
plaintiff when I represented the Senate, was on the opposite side [from] me and I
cross-examined him. I had known Mike DeGrandy for a long time.
P: When they did the first hand-tally of the three precincts, there was only a change
of six votes, so the argument was whether there was a substantial enough
reason to do a recount.
Z: We put on an unrebutted affidavit if I recall, of a statistician who said that there
was enough, realizing that there was a razor-thin margin. By the way, we always
knew that it was going to be close. Anybody who tells you that they knew what
the end result of this [would be], do not believe [them]. They are looking at it
through revisionary history. Everyone on both sides knew it was going to be
close. We can talk about that at the end. The lawyers for the Democrats and the
lawyers for the Republicans, it appears from the review of documents just
recently done, may have been arguing the exact opposite positions that they
should have been arguing all along. We thought that if we had a liberal standard
and a full recount, that we win. [We] made the argument. It was passed. Myriam
Lehr was under a lot of pressure.
P: The vote was one-to-one and then it came to Lehr. Do you know why she voted
the way she did? It was a change from her first vote.
Z: I think she honestly believed she had to vote that way. I think her husband was
in the front row. Her husband, I understood was active in the Republican party.
She is an elected judge. We have a large Hispanic community. Obviously, it was
a question that had a lot of impact on her. One of my arguments, as you can
see, is that both her family and my family share the same common heritage. My
grandfather came from Russia to Cuba and when he was leaving, trying to find
democracy, he had to leave Cuba for the United States. He said, thank God,
even though it was very sad that he was leaving. He said, I have to be a refugee
twice in my life, but I know I will not have to be a refugee a third time because if
the United States falls, there will be no place to go. I think that a lot of her family
history and doing what is right [factored into her decision]. She did what was
right and she ordered the recount. Of course, that changed later on.
P: One issue that came up during this time is that apparently Al Gore [unsuccessful
Democratic presidential candidate, 2000; U.S. Vice-President, 1993-2001; U.S.
Senator from Tennessee, 1985-1993] was in touch with Alex Penelas [ Mayor,
Miami-Dade County, 1996-present], trying to get him to use his influence to make
certain that there was a recount. According to most accounts Penelas did not do
anything and Gore later was upset with him. Gore said, I thought he was my
friend. Do you have any knowledge of what was going on in terms of what
Penelas was doing or not doing?
Z: Just in one regard, and it is maybe an important regard. I was not privy to any
conversations between Penelas and the vice-president, however I was privy to
one conversation involving security for the building. Gwen Margolis was, I think,
also involved in that conversation. We felt that there was a real concern for the
rent-a-mob as we used to call it, shutting down the process, which is ultimately
what happened. We were concerned about the rent-a-mob and I was on a
phone call. I cannot be one hundred percent sure, but I believe the people in the
room were Penelas and Bob Ginsberg who was the county attorney [either]
somebody in his office or him, [and] I think Gwen was in the room. We were very
concerned and were asking for adequate security around the building. Fort
Lauderdale had done a very good job in securing their building. They had a
place for protesters, but they kept them away from the building. Dade County
We had people between the floors, shutting down the process. I feel that it did
intimidate the people who were voting on the issue. In the trial, [the Sanders]
Sauls [judge, Florida Circuit Court] case, there is a correlation with what
happened because one of the witnesses they put on who was supposed to be an
independent witness, the fellow that Kendall Coffey first examined, who was
supposed to be neutral, we had pictures of him sitting on the floor protesting in
the Dade County building. [There were] protesters up against the window and in
between floors and inhibiting people. There is no reason in the world that should
have ever occurred.
P: The manual recount begins on Monday, November 20 and with all the protests it
is shut down on Wednesday, November 22. On one occasion, they move from
the eighteenth floor to the nineteenth floor. Can you describe some of the chaos,
who was there and what they were protesting?
Z: Yes and no, and let me explain that to you. First of all, I think it is important to
note what happened after the hearing, because a lot of things happened after the
hearing that I do not know if you are aware of. After we were successful, we
thought the Republicans were going to go over and try to get an injunction to
keep the counting from beginning. This is a crazy weekend, so it is a very
important one. I do not know if anybody talked to you about this. We then go to
the courthouse which is right across from the county building. We being myself
and Kendall and Bob Martinez and Mike DeGrandy. They are waiting to get
orders from the Republican party to file an injunction. We are just all standing
around. Normally what happens is the case is assigned to a judge, but on a
weekend, it is an emergency judge. At this point, it is Judge Margarita Escaroz,
who is a Hispanic judge as well. We think it is going to be assigned and what
happens is they never filed it. We give them our phone numbers, [and said] this
is where we are when you are going to file it. Give us notice so that we can
come and argue. The next day, I think it was on a Friday and Saturday is the
next day. Kendall Coffey comes over to my house and we are talking about
some strategy issues and we are watching the Florida-Florida State game, which
you know in Florida is an important event. I am a Gator and Kendall went to
Miami. I am watching the game, it is about 7:00 at night and I get a knock on my
door and I am served with a subpoena and complaint that they filed the lawsuit
that night, Saturday night. There is a hearing Sunday morning at 7:30 a.m. the
next morning with Judge Escaroz who is not in town but she is going to be on a
telephone call. All of this is very important because they are doing everything
possible to shut it down. We have the hearing and she lets it [the recount] stand.
I argued that hearing and we were successful. They then file another motion in
front of the judge that it was supposed to be assigned to, which is David Tobin
[Dade County Circuit judge], and that is scheduled for 8:30 Monday morning.
Judge Escaroz basically says [to] take it to the judge it has been assigned to.
P: This is not an appeal, it is just refiled.
Z: This is an injunction to keep the canvassing board from recounting.
P: They can file as many as they want to?
Z: It is one case, but it is supposed to be assigned to the sitting judge which is Dave
Tobin, [but] since it is the weekend, Judge Escaroz hears it and says, let Judge
Tobin hear it. Judge Tobin hears it and he denies it straight out. I argued that as
well on Monday morning. I am fat, dumb, and happy and I am walking along and
I figure that we got a vote going. I am supposed to go to New York that weekend
[with] my family. We were going to go see the Macy's [Thanksgiving] Day
Parade and have some fun. I get on a plane and leave town. When I leave
town, that is when the commotion happens. By the time I land in New York, I get
a call from Kendall saying they just voted to stop the recount, Joe Geller has
been arrested, there has been a riot, all these things [have happened]. [I was told
to] come back immediately, we have got to file an appeal to the Third District. I
never leave the airport in New York. [I] get off the plane at Kennedy, find the next
plane and come back. It is now around noon. I get to Kendall's office and he
says the Third District Court of Appeal is having the naming of their building that
day so all the judges are there. They will entertain a brief from us if we get there
by 4:00. So we are writing up a brief and we are doing all this. Kendall and I get
in my car, ride out there and get there by 4:00. There is a cavalcade of cars
behind us bringing the appendixes for the briefs. We get there and we file it with
the clerk. The clerk says, go wait in the lawyer's conference room. There is a
lawyer's waiting room on the first floor. We will advise telephonically the other
side [that] this has been filed. By the way, we served a copy on them by fax.
They can respond and then you will have an opportunity to respond and the
judge is going to decide tonight. This has never happened in the course of
human events in Florida. You have an appellate decision with all the briefing
done within about six hours. That tells you the uniqueness of this whole thing. I
do not know whether you have been told all this, but this is really the underbelly
of a lot of things that went on. It shows how dramatically different it was from the
run-of-the-course trial. We sat there in the lawyer's conference room. At that
time, all the press is there. Wherever you go of course, there are cameras
everywhere. We wait for the response of the other side. We get their response.
While we are in the room, we are dictating over the phone what we believe a
reply to their response is going to be. All we are doing is guessing, but we had a
pretty good guess at what they were going to say. We are only going to have a
hour to respond. In effect, we get their brief, we have already dictated what our
response is, we tweak it a little bit and we file it. They tell us to wait. A couple of
hours later, we get an opinion that basically denies our appeal but says it really is
a matter for the Florida Supreme Court to take up. As a matter of fact, that is the
first time the [Florida] Supreme Court is asked to act. The Supreme Court of
Florida is asked to act a number of times. Had they acted earlier, we never
would have gotten to the problem that we ended up having. We, on a number of
occasions, said to the Supreme Court of Florida, you have got to act now. Not
acting, in effect, was a decision in and of itself.
P: Did there not have to be a formal appeal to them?
Z: Yes, and we did [that] the next morning. The next morning, we filed a formal
appeal in the Florida Supreme Court. We had all the briefing in one district and
in the Supreme Court all within a day. The Supreme Court said to take it under
advisement. At that point, I get a call from my friend David Boies [attorney for Al
Gore in 2000 election]. David Boies and I have been friends for a dozen years
and work on cases together. He sees me on television actually arguing. He
says, it looks like we are going to have a trial up here in Tallahassee. I would like
you to come up and try it with me. I did not know if I was going to carry his
briefcase, which would have been fine too. I did not know what I was going to
do, but I got on the next plane and I went to Tallahassee. From there on, [and]
when I got there, we were already kind of in a trial mode. There were not a lot of
trial lawyers involved. Mitch Berger [attorney for Al Gore in 2000 election] is a
great guy and a good friend of mine, but he is not a trial lawyer. He will tell you
he is not a trial lawyer historically. Jeff Robinson [attorney for Al Gore in 2000
election] was there, Blackwater from Washington, a very fine person. Kendall of
course is a trial lawyer. Kendall was there. Ben Kuehne [attorney for Al Gore in
2000 election] was there. [Joseph E.] Sandier from DNC [Democratic National
Committee], Jack Young [attorney for Al Gore in 2000 election], the voter expert,
he was involved in the voter recount down here. [There were] a few other people
who will come to mind. Dexter Douglass [attorney, represented Al Gore in 2000
election] was already there. Dexter and I served on the constitutional revision
commission. I was appointed by Governor [Lawton] Chiles [Florida governor
1991-1998 (died in office)] and Dexter was chair of that, so Dexter and I had
spent two years together on a regular basis. I had known Dexter since I was a
kid practicing law. Dexter was already involved. David [Boies] basically said,
Steve, get this thing ready. Mitchell Berger and I would spend a lot of time
[together]. I had a much closer relationship with David than Mitchell did because
of the years of experience. Mitchell would have an idea and we would work on it.
We would decide if it was something worth talking to David about it and we would
talk to David about it. Ron Klain [chief of staff to Vice-President Al Gore; head of
legal operation for Al Gore in 2000 election] was there as well.
P: Ron Klain was the one who was really the intermediary between the lawyers in
Florida and Al Gore. Was he making most of the legal decisions?
Z: I really am not sure because I met Klain for the first time [during the election]. To
me, David was making the legal decisions. I do not know to what extent Klain
was also. I do know the Vice-President was very much involved. There was an
early decision which was whether or not to challenge Sauls for cause. I was one
of the few people who strongly believed we should challenge Sauls for cause.
Berger also believed it. The reason we should have challenged it is because
Mitchell Berger's partner was a person who ran the opposition campaign to Sauls
when he ran for judge and Sauls would not even acknowledge his existence.
There is bitter hatred between them enough under Florida [law], which has a
very low bar for recusal. The recusal statute has a very low bar. I believe we
absolutely would have had a right to recuse the judge. The Vice-President
basically, it is my understanding, made the decision. I was not privy to that
conversation. It was a view that it would be forum shopping of some kind. We
always wanted to wear the right hat. I think if you are going to have a judge like
Judge Sauls, you should immediately move to recuse him. At the very least, it
would have aired a lot of the things that later came out in subsequent stories
about Judge Sauls.
P: I want to spend a lot of time on that particular trial, but let me get back to Miami-
Dade. You mentioned Joe Geller got arrested. Apparently, he wanted to find a
sample ballot. When the crowd saw him with a ballot, they accused him of
Z: I am in the air during this time period. He told me that. By the time I was on the
ground, he was released. He did not seem very shaken. I guess he was pretty
shaken at the time. He said [that] he had a sample ballot that he was trying to
show people and it says sample on it. They were yelling and screaming, he stole
the ballot. It shows you that it was a mob mentality.
P: The crucial issue is that when the canvassing board meets again, they decide not
to continue and I believe the vote was 3-0 at that point.
Z: What I have understood is that the canvassing boards are meeting on one floor
and the ballots are on another floor and the mob is in between. They have
basically got to find their way through a mob to even count this. It is just total
chaos. That is what I have been told. I was not witness to it.
P: David Leahy says that they had decided just to count the under-votes which
numbered 10,750. They had five days to do that. He argues at this point that we
do not have time to count the under-votes. Was that persuasive to you?
Z: Not at all. They always argued that we did not have time. One of the reasons
they did not have time is that they stalled every bit of the way. I have to go back
to Judge Terry Lewis [Leon County District Court Judge, 1988-present], who
ordered the final recount [and] is just a fabulous judge. He just says we are
going to get as many groups as we need to do that. We were only twenty-four
hours away from having everything counted. I think that is one thing I do not
ever hear people talk about. If Leahy was saying one person cannot count
10,000 ballots, he was right. If he was saying we cannot put together enough
groups, and there were plenty of people willing to volunteer, he was wrong. It
was just a function of wanting to do it.
P: It should be noted that the judges with Terry Lewis did count those 10,750 votes
in one day.
P: It also should be pointed out that there was nobody there arguing and protesting
each vote. They did not have observers.
Z: Absolutely. It was done in one of the convention halls in Tallahassee. The
reason I know is because I had strolled down there myself, but they kept lawyers
out of there and they kept partisans out of there. [It was] a sanitized proceeding.
If people really wanted to do justice, it clearly could have been done.
P: You think that in effect, the Dade Count canvassing board was intimidated into
stopping the count?
Z: I feel that Leahy probably was not going to count the votes no matter what. He
did not need to be intimidated. I never saw him changing at all. I think it was a
difficult decision for Myriam to begin with. I thought that was enough maybe to
convince her to go along with Leahy. There is often a real reason and an
ostensible reason everything happens. The ostensible reason, [is] we do not
have time. The real reason is, we do not want to do it.
P: How much do you think that might have to do with the fact that David Leahy is
the only appointed elections supervisor in the state?
Z: I do not want to suggest he had bad motives for doing what he was doing. I
cannot tell you and that would be unfair. It most certainly has been pointed out
as something to be considered. There are people who make honest decisions
even under a lot of pressure.
P: What I would like to do now is go directly to the Sauls trial, then we can come
back and go through the legal decisions. What was the overall strategy as you
are planning to go into the trial with Judge Sauls? This is, of course, the
beginning of the contest phase of the election. Dexter Douglass told me that he
had advised the Gore people to get out of the protest phase and go into the
contest phase earlier. Do you think it was a mistake not to do that?
Z: Probably. In retrospect, probably. I do not think it was determinative. I think
when you have four Supreme Court justices of the United States who are going
to make the decision no matter what you say, or rather [if] you have a majority of
five justices, it does not make any difference what you do. Frankly, if we knew
they had a majority of the Supreme Court, we probably would not have started off
to begin with. [This] is not a legal discussion, but I can tell you something very
strange that happened during the course of this. I listened to Dave Boies's press
conference where a reporter asked him whether the Supreme Court of the United
States would ever take jurisdiction of this case. This was very early before the
suit was even filed in front of Judge Sauls. He said, never. This Supreme Court
believes in federalism, it is clearly a state question. When he said that, I have to
tell you, something in my stomach tightened up, I swear to God. If they were
doing a movie, it would be a foreboding of the future. Nobody ever thought the
Supreme Court was ever going to take this. Our strategy was pretty simple and it
became even clearer after our first hearing. Our ultimate strategy was to get out
of the circuit court, no matter who the circuit judge would have been. That was
another reason that they did not recuse Judge Sauls. [We wanted to] get to the
Supreme Court of Florida as soon as possible. The fact is that at the first hearing
it was a total disaster. We got no specific deadlines. The Republicans were just
doing everything to delay, throw it against the wall. I think Joe Klock [attorney
representing Katherine Harris during 2000 election] made a statement, [that] we
do not have enough lawyers to go around and do all these things. It was just
delay and we are going to keep this going on forever. I got back and actually the
chronology of the Sauls case was designed by myself. You can ask Dexter
about that. I took a calendar and backed up. I started off with the last date we
could be in front of Sauls before we had to be in the Supreme Court and used
that and went backwards seven days. We had to have discovery in three days,
we had to have witnesses in one day, we had to have two days of trial. I went
back and did a calendar and that calendar is in the record, that is the calendar
that I constructed as a trial lawyer, had it approved by everybody. Mitch Berger
and I worked together on this issue. Mitch says, we have listed sixty witness and
they have listed forty. There was like a hundred witnesses. Mitch said, we have
got to limit ourselves to three witnesses, they have got to have three witnesses,
we have got to go to trial, and we have got to get out of here and I agreed one
P: You did request an expedited calendar.
Z: I actually submitted that calendar as an exhibit in the trial transcript somewhere.
We finished before that actual calendar ended. If it was a seven day calendar,
we finished in six days. We limited the number of experts. We had a voting
machine expert, they would have a voting machine expert, they would have a
statistician, we would have a statistician. We would have a day and a half to
present our case, they would have a day and a half, that type of thing.
P: So you do not see Judge Sauls himself as holding up the process?
Z: No, as a matter of fact, I do not see that. We knew what he was going to rule.
We had the brief. We had the brief prepared, so there was no surprises in what
he ruled. The strategy was to really not care what he ruled because the
Supreme Court was not going to give any credence one way or another to the
way this came out. I think no matter who the judge was, particularly in this
instance, we felt that they were going to make their own decision. All we wanted
to do is get an opinion and get out of court as quickly as possible. We felt when
we ended up at trial, we had a good record because of the
P: I want to go through that, but I also want to point out, maybe you agree with this
as well, as soon as Dexter Douglass found out it was going to be Sauls, he told
me he thought Sauls was going to be out of town. He says, it is the worst judge
we could have gotten because he is slow and conservative. Had you challenged
him, would Nikki Clark [Judge, Leon County Circuit Court] or Terry Lewis or
somebody else have taken that case?
Z: I think so.
P: Would that have made a difference?
Z: I think in the final analysis, the Supreme Court of Florida was going to rule the
way the way they ruled. We would have had an easier trial. We would have
come up as the appellee as opposed to the appellate.
P: That makes a little difference does it not?
Z: Not as it turned out because we won in the Florida Supreme Court. As it turned
out, our strategy was perfect. Our strategy was perfect until the Supreme Court
of the United States stepped in. I will discuss that with you in a minute.
P: You started out, you called Kimball Brace, president of Election Data Services.
What was the purpose of calling them?
Z: First of all, people always ask, how did we get to Kimball Brace. I have talked to
the Republican lawyers and that the one thing we both admit to each other that
the best witnesses for each side was the other party's experts. No question
about it. You have got to remember we have twenty-four hours to list our
experts. Normally, what you [do] is you meet experts, you interview them, you
have time to talk and decide between experts. Here, he was the one who was
quoted in the New York Times as the expert on voting machines. I had met
Kimball Brace during some other proceeding. [I] called him on the phone and
said, we want you to testify here, I need you in Miami tomorrow. I had filed a
motion that he could go examine the machines. I did not even know how to spell
Vote-O-Matic when I got hired here. Nobody did who is an expert on voting
machines? I said, I need you here in Miami tomorrow, I am going to take you to
Dade County and then I am going to have one of my partners, Jennifer Altman,
take him up to Palm Beach and we had an opportunity to review, not the real
machines because they were under security, but samples of the real machines.
He came into town. I disassembled the machine. He showed me the plates, he
showed me how it worked, the bands and everything else. As a lawyer at trial,
you have to become an expert in these things yourself in order to examine
people. Then the next day he went up to Palm Beach and he came back. We
flew immediately to Tallahassee where he was deposed on a Thursday or Friday.
We had an agreement that each side was going to depose the other person's
witness for an hour or two hours. I was designated to be responsible for all the
voting machine witnesses, both direct and cross. So I had Kimball [Brace] on
direct and I had [John] Ahmann [refined punch card ballot system in 1960s] and
another guy on cross. His testimony was never mentioned again after he
testified. He had nothing of any value. Judge Sauls and I had a little dispute
about that issue. You could see that after his cross-examination and after he
testified, his name was never mentioned as having any relevancy to these
P: Was he the one that was talking about the chad buildup on the left and that the
rubber got hard?
Z: Yes, he was the rubber guy. He was a metallurgist of some kind. It was just
totally useless testimony. I cross-examined him. Judge Sauls did not like the
fact that I was cross-examining him. Judge Sauls tried to rehabilitate Ahmann,
and Ahmann, to his credit, stayed strong with the truth which was you needed a
P: You had brought actually two of the Vote-O-Matic machines to court. Is that
Z: Yes, I had ordered them. One was Kimball's the Vote-O-Matic. There were
two machines, one was Kimball Brace's and one was one we had ordered. One
was from Palm Beach and one was from Dade County because there were two
types of machines. There was a Vote-O-Matic and there was another smaller
machine. I forget the name of that machine. There were two different styles, but
the Vote-O-Matic was probably eighty percent of all the machines that were in
P: You have not looked at these machines before you get to court?
Z: I looked at Kimball's but I did not look at the ones we ordered.
P: Your hope is that there will be a lot of chads in there, right?
Z: This is a great story, I do not know if you heard this story or not. There are two
machines that get brought up. One is from Palm Beach, one is from Dade
County. It is my birthday by the way, it is almost a year to the day. It was
[around] December 2, I remember. I said, it was the best birthday present I ever
had. One of the pictures you see in a lot of the papers was me shaking the
machine and holding it up. Phil Beck [attorney for George W. Bush in 2000
election] was trying to say, well you hold the machine this way and so forth. No
one clears the machine by shaking it, which was my point. The long and short of
it is, there is a box that the chads build up in. I learned, by the way, when I went
over to examine the machine, that the machines had not been cleaned in eight
years in Dade County. It was just voluntarily told to me by a person who was
showing me the machine. It was just one of those fortuitous things. They do not
clean them after the elections and it was eight years since they had cleaned
them. I thought there was a pretty good chance of a good chad buildup. There
is little latch that you touch and the drawer pops out. I opened the first one very
quickly and there was nothing in there, no chads. I immediately shut it. The
second one I opened, and as I opened, it popped out and there was chads
everywhere. Judge Sauls says, get these chads off of my desk! Loads of chads
built up there. If the second one had been empty, it would have been a very
difficult day. It was difficult as is, I thought Phil Beck had done a good job in
cross-examining Kimball Brace. Of course, when you have a judge who is going
to let you ask any question you want, it makes it a little easier.
P: Phil Beck and Fred Bartlit [attorney for George W. Bush in 2000 election] were
top level lawyers.
Z: Absolutely. I know both of them and have great respect for both of them. As a
matter of fact, Fred and I have been on panels together.
P: The next witness was a guy named Nicolas Hengartner who was the Canadian
Z: I was not even in the courtroom for that because I was back looking at the
transcript from the depositions and preparing cross-examination of Ahmann.
Hengartner, I think it was Jeff Robinson who took him on direct or David Boies, I
do not remember which one. I was not even there. Though, I heard it did not go
well. I am in the office, we are in a bunker, in effect. We were originally in Mitch
Berger's office, then we have to move to an office next to Dexter's office because
we were just overpowering the facility. You cannot go outside, because if you go
outside, you are swarmed by press. We took the depositions of these experts
and we got the disk, the ZX disk, and we immediately pop it in and get the
transcript. This is done within hours as opposed to days and weeks as it usually
is done, and then you prepare your cross-examination. So Hengartner testifies, it
was not a happy time around the office after that. Then the next day, I take
P: In effect, what happened was that everybody's expert witness was discredited, in
P: Talk about this with John Ahmann who is the designer of this machine, the Vote-
O-Matic. This is I guess probably one of the most well-reported moments, so you
got a lot of publicity in the New York Times. They called it the Perry Mason
moment and it has been referred to in a lot of the different books and so forth.
Z: I took Ahmann's deposition, I think it was on a Friday. At the time, he mentioned
to me that he had a patent on a stylus. He just volunteered it. [It] dawned on me,
if he had patent on that, maybe he has patents on some other things. I called
one of my partners, Jennifer Altman, who had taken Brace up to Palm Beach. I
said, Jennifer, why do you not go online and see if Ahmann has any other
patents, just in passing, this was just an afterthought like a million other things. I
had taken his deposition and I have to tell you, I have cross-examined people for
thirty years and I thought he was going to be the most difficult witness I ever had.
He was a very, very likable witness. He was about 6 [feet] 6 [inches tall], gray
hair, he looked like Charlton Heston [movie actor] in Moses. He had this very
folksy, nice appearance. I think he wore a sweatshirt or something like that to
court. Butter would not melt in this guy's mouth. You clearly were not going to
go after him in any aggressive way. I had gotten him on deposition, I had asked
him the question, in a close count, do you need a hand count? He said yes,
under oath in deposition. Once he said that, I really was surprised, in some
ways, they even put him on. I figured that they would have coached him to say
something else. I do not know whether he would have said something else if I
had not had the patent. What happened is right before I go to take his
examination, I have a white file put next to me. It does not say urgent, it does not
say anything on it. I do not know what it is. Out of happenstance and
fortuitously, I open it up. I am standing up, I think. I realize it is the patent. I am
reading through the first four pages and it does not say anything and it is all
technical. I am reading as fast as I can and I think why am I reading this? Then
all of a sudden I see the language which is, this machine is defective, it needs to
be replaced. Not only the stylus, but there is a chad buildup and the plastic is
bad. Everything [was in there], our whole argument. He had talked about in his
direct, how he had been involved in the earlier generations. There was a
subsequent generation and you filed the patent and it is under oath and this is
what you said. This is when Phil Beck came up and said, I do not have a copy of
this. [I said], well, I just got a copy, you can read it along with me, Mr. Beck if you
want to. He [Ahmann] admitted unequivocally that in a close vote, the only thing
you can do is a hand count and it is very simple to understand. This is not
complicated. A chad is this little piece of paper that swings, that hangs off, it is
not punched all the way through. The reader, the mechanical reader is a ray of
light and you adjust it to how much light goes through before it is considered a
valid ballot. Well, these chads, every time they are handled they go up and back
and they can actually close up so that the light does not go through, even though
it is punched. Therefore, you must have a hand count, it is that simple.
P: It just does not read the ballot.
Z: Does not read it. In the final analysis, if you look at the whole lawsuit [End of
Side 1, Tape A] you can summarize it in one sentence. The only witness that the
Republican party ever put on under oath [to testify] about whether a hand count
was necessary in a close vote was John Ahmann and he said it absolutely was.
P: I know that you were expecting the decision, but Judge Sauls rules that there
was not a probability of the count changing and that the county canvassing
boards did not in any way violate their discretion. Was that a sound legal
decision in your point of view?
Z: I absolutely do not agree with it in any regard. Again, we knew what he was
going to say. We knew what he was going to say before the first witness went
on, based on what Dexter told us [about] his philosophy and his orientation. You
then saw some articles in the New York Times about interviews with him being
present and his wife making certain statements which he did not refute. You can
see from that that we have good reason to believe what we believe.
P: What about this business of bringing the votes to Leon County. What was your
position on that?
Z: We had a lot of discussion on that, a lot of discussion on it. I personally did not
think it was necessary. As a matter of fact, I had called the clerk of the court
down here, Harvey Ruvin [Dade County clerk of court]. I believe that the clerks
of the court in their respective circuits could have done this. In retrospect, the
way Judge Lewis decided to do it, I am glad they were in Tallahassee.
P: Eventually, it turned out to be the right thing to do.
Z: It turned out to be just fine. Though it was kind of silly, it looked like an O.J.
Simpson [football player accused of murdering his ex-wife] chase where they had
the helicopters over above watching these ballots being taken. This case was so
different. It is hard to imagine. MSNBC [television network] asked me to be a
commentator for a whole day. We would be in the studio the whole day and they
would ask us questions. They would cut the programing to watching people
count ballots. The American public, tens of millions of people, sat in front of their
television set all day just watching people hold up ballots to the light. It was
probably as much fun as watching grass grow. That is the kind of [mentality that
people had,] it was the country in the balance. I never, ever was concerned
about our democracy. Not for a split second. But there were people who
P: Let me ask you about the Sunshine Law and cameras in the courtroom. How do
you think that affects the judge, lawyers, or witnesses?
Z: I have been involved in high exposure cases before, so I think the first time that it
happens to you, maybe you feel different about it. It does have an impact.
P: Surely you knew the entire world was watching this.
Z: I will give you an exact example. When I was doing my cross-examination and
direct, to the left [were] probably fifty, a hundred cameras. Normally [with]
cameras in the courtroom, the way it is in Florida, you have one camera in the
courtroom. Only one, and it goes to a common feed and therefore it is not as
obtrusive as it was here. As a trial lawyer, it may be difficult for somebody who is
not a trial lawyer to really appreciate this, but somebody who does it can
understand this. It is kind of like being in the zone. When I was there, there was
the witness, the judge, and the opposite side. I completely tuned out everything
else in the courtroom. It had no effect. It honestly had no effect whatsoever.
While you were sitting at counsel table, you probably did not want to be
scratching your head because people would take a picture of it. While I was
doing my job, it had no effect. The next day, someone told me that forty million
people had watched my cross-examination. If you think about the fact that forty
million people are watching you mess up or do your job, you are basically going
to drool on yourself. That is about all you are going to be able to do. I think it is
very much like an athlete who competes in front of an arena and knows the world
is watching. The Super Bowl. You do not think about. You cannot think about it
because if you think about it, you cannot possibly do your job. It was a media
circus. Some day somebody should do a book just on how the media was
manipulated by both sides. They would send out certain people to give certain
interviews depending on what the message was. If you had something that was
pending on appeal, you would not send somebody who was going to argue it the
next day because you did not want them to be talking about what they would be
arguing. The media role in the whole campaign was enormous.
P: Justice Gerald Kogan [Florida Supreme Court justice, 1987-1998, chief justice,
1996-1998] was on a lot of these talk shows. He said that he thought that the
great impact of that was a huge amount of misinformation was transmitted
because each side was presenting their partisan point of view and were not really
dealing with legal issues.
Z: I have spoken on this, there are tapes at the American Bar Association meetings
about this. The one thing that I am now very proud of is that [neither] the Vice-
President of the United States, nor anybody who he was involved with ever
attacked the judiciary directly or even indirectly. We never did it.
P: In fact, he specifically said not to do it, is that right?
Z: He did not tell me that but I presume he did. I did have a conversation with the
Vice-President after the Ahmann cross-examination. He called me back at the
office and was very pleased with it. After the United States Supreme Court ruled,
after the case was over, and after he had conceded, he had some people up for
dinner that weekend. I have a picture of him in here just giving me the biggest
bear-hug in the world. There is a brief for the Florida Supreme Court which he
signed, Steve Zack a.k.a. Perry Mason, best brief ever filed. I have that here, [it
is] something I will cherish. I talked to one of his daughters [who] said that he
was watching the cross-examination every minute and he was jumping up and
down when Ahmann made the statement he made. He did take a very definite
interest in every aspect of the case. Could we have gotten people to attack? I
am sure. But it was just not considered proper because the judiciary under no
circumstances should have been attacked. If there was one thing that has not
been discussed enough, it was that.
P: James Baker [U.S. Secretary of State, 1989-1992; Campaign Manager for
President George Bush, 1988] was certainly severe in his criticism of the Florida
Supreme Court in their 4-3 decision.
Z: You are being kind.
P: What about the impact of the Sauls trial on the Florida Supreme Court? Do you
think that had any impact on their 4-3 vote?
Z: No. I do not think it had any impact at all. Sauls had plenty of run-ins with the
Supreme Court of Florida before this, as you are aware of. I think the Supreme
Court, knowing the nation was in the balance, read the record. I think that there
[were] some great arguments.
P: One observer has said that, and of course the Supreme Court had some conflict
with Judge Sauls and has removed him from chief judge, this was in fact a
conflict between the conservative judicial philosophy of Sauls, and the liberal
judicial philosophy of the Florida Supreme Court.
Z: This is a conflict between who wanted Bush and who wanted Gore in a lot of
ways. In the final analysis, [and] I have obviously had a year to think about it and
I have said this before publicly, that whether [you believe] the Supreme Court
was correct or incorrect, the United States Supreme Court or the Florida
Supreme Court or Judge Sauls, is based only on whether you wanted one
candidate or the other to win. It is kind of like abortion or religion. You cannot
convince somebody that your religion is better than theirs or that abortion is right
if you do not believe in it. One quote that I strongly believe may summarize it is
from Will Rogers [humorist, actor], who I think is a great philosopher. He said,
where you stand depends on where you sit. If you sat with the Vice-President,
you know where you stand. If you sat with Governor Bush, you know where you
P: Do you think the court decisions were political and/or philosophical?
Z: I think that the Florida Supreme Court decision was absolutely legally correct and
I believe that the United States Supreme Court decision was legally incorrect. I
believe they believe it was legally incorrect because they themselves say that it
has [no?] precedential value. Imagine saying, I am going to tell you something
today, but you cannot rely on it tomorrow because it has no [future applications].
P: It only applies to this case.
Z: They know that [in] this [case,] the end justified the means. This destroys all
issues of federalism. What was the Supreme Court of Florida to do? Was it
supposed to make new rules? The rules that were in effect by the legislature
were adopted before any presidential election was on the line. The law on intent
and what constitutes intent is the exact same one that the Texas legislature had
passed under George W. while he was governor. It is the exact same law, it has
been the law in this country for one hundred years. One argument that David
[Boies] and I talked about making that he did not make in the Supreme Court of
the United States is [one] that they talked about [during] the equal protection
argument that the Supreme Court of the United States went off on. If you think of
a ballot as the same as a vote, a vote and a ballot [are] the same, and you
consider it a verdict, in other words it is a decision, a verdict, based on two
different people. In every courtroom in every state, every day the reasonable
man standard is applied to verdicts. It is an intent. Reasonable man is the same
thing what would a reasonable man look and say the intent of the person is.
Nobody ever says that is an equal protection violation. It is not as long as it is
based on a discernible standard. Any indentation is a discernible standard. If you
write the name Bush, there is no question about who the person intended to vote
P: That is why they have canvassing boards, to make those determinations.
P: I want to come back to that because I think that is a critical issue. I want to bring
up one point on the Fourteenth Amendment. In a 1998 case from Georgia, there
was a problem with the death penalty. One county had provided a different
sentence than another county on similar cases. The US Supreme Court ruled 5-
4 that it was not a violation of the Fourteenth Amendment. In fact, with the
William Rehnquist [U.S. Supreme Court Justice, 1972-present, Chief Justice of
the U.S. Supreme Court, 1986-present] court, Fourteenth Amendment cases had
not had very much success.
Z: I was surprised with some of those votes, to be honest with you. I have read
since then some conversations between Justice [David] Souter [U.S. Supreme
Court, 1990-present] and Justice [Anthony M.] Kennedy [U.S. Supreme Court,
1988-present]. Justice Kennedy, who I think is a great justice, is the Florida
justice. I had known him personally, he had actually sworn me in as president of
the Florida Bar. He was also the justice in the DeGrandy case that entered an
injunction on behalf of the House. I thought Justice Kennedy might have gone
with the other side of the issue.
P: Souter said if he had one more day, Justice Kennedy might have voted
Z: That is what he said. Kennedy denies it, but I believe that is possibly true. Here
in my mind, [I believe] those conversations that were going on in the court. I will
tell you probably the best story. Again, it is one that has been reported. The
fellow, the editor, from Newsweek who covered this, Michael Isikoff. Isikoff and
myself and David Boies were having lunch together. This is after the Supreme
Court of Florida had ruled and the votes are being counted. We are feeling very
good and we decide to take a stroll from the bunker to Andrew's for lunch. It is
about five blocks and they were having a craft festival in between. There were
hundreds of people. We walked up through the booths. People would be
grabbing David and asking him for pictures. Thank you for doing this. It was
really a victory stroll in many ways. We get over to Andrews. We are sitting and
having lunch and there are TV monitors everywhere in Tallahassee. There are
two monitors that we are looking at while we are sitting at lunch. One is a CNN
monitor and one is an MSNBC monitor. We are all talking. People forget the
Eleventh Circuit had an appeal pending at the same time. They denied the
P: That is one of the most conservative groups in America.
Z: Absolutely. They denied it. There is a flash on the screen. It says, the Eleventh
Circuit denies a motion. David looks at me and he says, of course they denied it.
How can counting legal votes in America ever constitute irreparable harm? It is
a direct quote. I laugh. Isikoff laughs. I say to David, I guess we can order
dessert. Not even two seconds later, MSNBC says the United States Supreme
Court grants certiorarii]. We get up and move. From that moment on, I think
everyone knew what the end was going to be. I left Tallahassee within minutes.
David went to Washington because we were still questioning as to whether he or
[Larry] Tribe [legal scholar; author; attorney for Al Gore in 2000 election] were
going to argue it. I was asked to go to Miami in case there were some additional
issues before the canvassing board down here. Kendall went to Palm Beach. I
think everybody at that time was feeling pretty bad.
P: Why do you think Larry Tribe argued the first time and Boies argued the second
time? Why do you think they picked Boies?
Z: I think David was there and he knew the record backwards and forwards. [The]
legal arguments were not all that complicated. I was not privy to that
conversation because we went on different planes to different places when that
happened. David called me that night. I talked to his wife that morning. She is a
very fine lawyer. [I talked to] Mary Boies right before the argument.
P: Let me take you through some of the events and court decisions. One of the
early court cases was the case Fladell v. Palm Beach County Canvassing Board,
which had to do with the Palm Beach butterfly ballot. The argument from the
Gore team was that this was in fact an illegal ballot.
Z: I was not involved at all.
P: What would your opinion on that be?
Z: There are many reasons this election was lost, but nobody can say that the Palm
Beach ballot standing alone [cost Gore the election]. [Nobody can say that] if
that had changed that he would be President today, the Vice-President.
P: In other words, if there had not been a confusing ballot.
Z: My understanding of that is that the Democratic party had signed off on it.
P: Although they did not bring the suit.
Z: They could not bring the suit because they had a big waiver and estoppel
argument. I do not know anything about it. I really do not. I know that all those
people did not plan to vote for Pat Buchanan [ unsuccessful presidential
candidate, 1992, 1996, 2000]. Regardless of what the subsequent counts show
by news media, there is no question that the majority of the people in America
intended to vote for Al Gore to be president of the United States.
P: Something that Joe Klock was talking about yesterday was whether you can
count a vote which has been mistakenly cast. If there is an error in the vote, the
vote is no longer a legal vote.
Z: It was not counted. It should have been counted if there was a normal ballot.
Joe basically ended with the result and walks backward to the way he wants it to
be couched. The fact is, there should have been a ballot that was not confusing.
Period. The other thing that I pointed out on cross-examination of Kendall Brace
that has not really gotten any play, is there is a sign that you only have like
twenty seconds, sixty seconds to cast your whole ballot. These machines,
particularly the defective ones were in areas where you had people who were
voting for the first time and who were minorities and who really needed more time
and more help with the machines. Joe and I disagree, probably on a number of
things, but most directly on the point we are talking about, [which] is when people
walked out of the ballot box after voting, the majority of people thought they voted
for the Vice-President.
P: They could not really be sure they did or did not. It was not clear for a lot of
Z: They knew they wanted to, whether they did or not. Obviously it was determined
that they did not.
P: Comment on Judge Middlebrooks' decision. He said that it was a state matter
rather than a federal matter. He says that a manual recount and I quote, "is
designed to safeguard the integrity of the electoral process and that the purpose
is to remedy any error in tabulation and since you have always have had sixty-
seven different counties, sixty-seven different canvassing boards, there will
always be discrepancies." That is the way the law is.
Z: I think Judge Middlebrooks's opinion was one of the most well-reasoned opinions
of all opinions entered and I would expect nothing less from him. I agree with
him in every respect. It should have been the opinion of the United States
Supreme Court. They should have adopted Don Middlebrooks's opinion.
P: How would you assess the performance of Katherine Harris, the Florida
Secretary of State [1998-present]?
Z: I have known Katherine a long time and I would say that we are friends. I am
sure she would say that as well. The irony of it is that when I left Tallahassee,
coming to Miami after the Supreme Court, Katherine was on the plane. She
came up and gave me a big hug. We had not talked obviously, because we were
on such different sides. Debbie Kearney [general counsel and chief of staff for
Katherine Harris] who was her chief of staff [was there]. I was Bob Graham's
[U.S. Senator, 1987-present; Florida governor, 1979-1987] attorney. I took a
sabbatical when he was governor and went up to be his attorney and Debbie
Kearney was on our staff. There are a lot of people we knew and personally
liked. She has told me that she does not view her role as partisan, but I think it
can only be viewed as partisan.
P: Do you think it was a mistake in judgement for her to be on Bush's presidential
campaign, even if it is just symbolic?
Z: I think that Bob Butterworth, having been on Gore's campaign, removed himself
from the process in a lot of ways. I think she should have removed herself from
the process. I think they should have both been out of the process.
P: What about the early rulings? I talked to Judge Charles Burton [Palm Beach
County Court; chairman, Palm Beach County canvassing board] and they wanted
an extension and Clay Roberts [director, Florida Division of Elections] and
Katherine Harris responded that could be given only in the case of a machine
breakdown or a hurricane. The Democrats argued all the way through that this
was inflexible and ultimately cost them both time and disenfranchised voters.
Would you agree with that assessment?
Z: Yes, and I think she should have granted it. There was no rush to judgement
here. If there are two battle calls from the parties, one is let us count all the
votes, and the other one is, they have been counted and recounted. If I hear that
one more time... I can still hear it in my sleep. The terrible thing for me, I should
just mention, I just voted in a City of Miami Beach election. They had to use the
same Vote-O-Matic machine and it was just a nightmare.
P: You will not have that problem next time. Another issue that comes up, that at
least gives the appearance of partisanship is when Judge Lewis rules that Harris
can accept the votes either 5:00 p.m. Sunday if she is open or 9:00 a.m. Monday
morning and she opens the office on Sunday. Of course, she had never been
open on a Sunday. By taking the votes at 5:00, the Palm Beach ballots are two
hours late, and do not get counted.
Z: Nobody can look her actions objectively. They can look at it objectively, but you
cannot feel that she was acting objectively.
P: She argues, as does her lawyer Joe Klock, that they did look at the requests and
denied them. The reason they opened on Sunday was that if all of the votes had
come in on Monday, they would not have had time to deal with them.
Z: That is silly. There is nothing that says government offices which do the people's
work and there is no more important people's work than deciding the
presidency of the United States should not be open to count votes. Ridiculous.
P: Another issue that comes up that has a lingering impact is the treatment of
military and overseas ballots.
Z: I was not involved at all in that process.
P: Do you have any opinion on that at all?
Z: I really do not know enough about it. I have opinions, but they are probably not
based sufficiently on facts [to] merit your type of discussion.
P: What about the circumstances in Seminole County and Martin County?
Z: Jerry Richman and Al Greer were both former partners of mine and friends of
mine. We had no communication with them. I would say hello to Al and Jerry
when I saw them in Tallahassee, but we had no communication.
P: On November 17, Judge Lewis, in Lewis 2, argues that the Secretary of State
can certify the ballots and that she has in fact exercised her reasoned judgment.
Then the Florida Supreme Court puts a hold on that decision. Were you
surprised by either the decision or the Florida Supreme Court's action?
Z: I thought the Supreme Court was correct in what it did. You have to understand
that my view of it, as I am sure is obvious from this discussion, is that the end
result of a legal proceeding should always be justice and technicalities are never
viewed as a sufficient reason to deny justice.
P: The Florida Supreme Court seems to be fairly consistent that the most important
thing is not to disenfranchise voters.
Z: It is not the Florida Supreme Court, it is the law of this country. Every state court
has said that. The United States Supreme Court has said that. You do not
disenfranchise [voters]. It starts with the constitution of the United States.
People are entitled to their vote. This is the most fundamental right that people
are being abused of.
P: On November 20, the Florida Supreme Court is going to give extra time for the
votes to be counted. They state that the date is going to be November 26. The
argument has been all through this, that decision was in fact making law,
changing law, a violation of 3 USC 5, that they have changed the law after the
election. What is your reaction to that?
Z: I think that is a procedural issue that came from the delays that were instigated
by the opposition and you cannot cause a problem and not accept the remedy
that your actions have caused. I think that was a very circumspect type of
remedy that was appropriate.
P: That is how they picked that date, they determined that Katherine Harris had by
her decisions delayed the process of recounting for five days. The difficulty was
that they never really explained that, did they?
Z: I think there is a mistake the Florida Supreme Court made, that is that they did
not respond to the United States Supreme Court. I am not sure that would have
made any difference. Maybe it would have made a difference with Kennedy.
P: Or Sandra Day O'Connor [U.S. Supreme Court Justice, 1981-present].
Z: No, I do not think it would have made any difference with O'Connor to tell you the
truth. I do think that it is something that they should have done. I had an
argument in front of the United States Supreme Court in DeGrandee and one of
the lawyers who argued another case in front of me [was asked a question by] a
justice. His answer was, he did not think it was relevant to the proceedings.
Justice Rehnquist stopped him and said, young man, when a justice of the
United States Supreme Court asks you a question, I want you to assume it is
relevant. I think they should have taken that [advice]. They were really
concerned that the United States Supreme Court was setting a trap, that
[Antonin] Scalia [U.S. Supreme Court Justice, 1986-present] was setting a trap
for them. They ultimately did issue an opinion. A day late and a dollar short.
P: Part of it was that they were trying to deal with both Gore's contest and respond
to the US Supreme Court. Again, the pressures of time and all of that make it a
very difficult process. Talk about the 4-3 decision that the Florida Supreme Court
made. Were you either surprised at the decision or the closeness of the vote?
Z: I will tell you [and], David Boies can confirm it if he remembers, I predicted that
vote and I predicted who was going to be on the sides of that vote. I had been
before the Supreme Court pretty good idea of where they were heading on
that. That is exactly what I expected and they were the exact justices. From the
questioning, if you [had] walked into court and said how it was going to go, that
would not have been how you would have seen it coming down. For example,
Justice [Leander] Shaw [Florida Supreme Court justice, 1983-present; Chief
Justice, 1990-1992] does not misdirect. There are some justices who misdirect
their questions. They ask you what appears to be a tough question so you can
ask a good question. I do not think Justice [Charles T.] Wells [Chief Justice,
Florida Supreme Court, 1994-present] is a person who misdirects his questions.
I did think we were going to win in the Supreme Court of Florida and I did expect
that vote and I expected it to be along those lines. Now, other people could have
been surprised but I was not at all.
P: Justice Kogan said that he thought to some degree that the vote might be 6-1,
that Shaw and Major Harding [Florida Supreme Court justice, 1991-present]
would have voted with the majority except they may have thought that time had
run out and therefore it was easier for them to vote in the negative.
Z: I do not know, there is obviously tension between the Supreme Court of Florida
and the Florida legislature that exists. I assume that each of those justices did
what they thought was right. I do believe that it is not a surprise how they came
P: Why do you think they just counted the under-votes?
Z: I really am not sure. My guess is that they were thinking if you only have a finite
amount of time, you have to have a limited number of votes to count.
P: What about Justice Wells's dissent, which was very strong? It appears to me
without knowing anything about it, to be somewhat personal. Somebody has
said he thought it was directed against Barbara Pariente [justice, Florida
Supreme Court, 1997-present] and other people said that is just Charlie Wells.
Z: I have known Charlie Wells a long time and he is not somebody who hides his
feelings. If you look at the argument in the Supreme Court, Justice Charlie Wells
came out roaring at David. I was sitting there at the conference table and
virtually did not want to go in and speak. It was only when Justice Lewis allowed
David to present our position that he was able to even do that. It was clear how
Justice Wells felt.
P: It is very clear at this point that Tom Feeney [Florida state representative, 1990-
1994, 1996-present; speaker of Florida House of Representatives, 2001-present]
and the Florida House of Representatives are going to make absolutely sure that
the Bush electors are going to be the formal signed, certified electors for the
state of Florida. In fact, they vote 79-41 in the House to affect that decision.
What was your reaction to that and do you think they had the constitutional
Z: I have not really studied that. I would be happy to but it is not one thing that I
P: Once the 4-3 decision of the Florida Supreme Court is made, were you fairly
certain that the United States Supreme Court would act and act quickly?
Z: I was fairly certain they would not act. It was a total shock that they acted. It
came completely out of the blue. There were people who had commented,
particularly some Republican strategists, that the Supreme Court of the United
States could not help themselves and would ultimately rescue them. I did not
believe it. It is kind of like the Easter Bunny and Santa Claus died on the same
P: Once you get the 4-3 decision, there is a sense that at least from the Gore team,
that now you really are going to have the votes counted and you have a chance
Z: Oh yes, we were celebrating. People were having t-shirts signed. We were just
as happy as could be.
P: Comment again on the 5-4 U.S. Supreme Court decision. David Boies said, it
was a catch-22, if the Florida Supreme Court had gone back to set a standard,
which the U.S. Supreme Court wanted them to do, they would have been making
law. If they did not set a standard, they violated the Fourteenth Amendment. It
did not really matter what the Florida Supreme Court did.
Z: That is how they set it up and Justice Scalia is a very bright guy. The question is
whether there was a standard. There is a third alternative which is what the
minority said, which I believe is the more well-reasoned. [It is that] there is a
standard and the standard is intent. It has been recognized as the standard for
one hundred years. There have been numerous United States Senate cases
that have been decided in one or two votes after recounts. This is just the way it
has been done.
P: As a matter of fact, one of Justice Stephen Breyer's [U.S. Supreme Court, 1994-
present], proposals was, let us send it back to the Florida Supreme Court, have
them set a standard and go ahead and count. That obviously did not have much
support. I will read you some comments about this. Some of them are a little
excessive, but I will read them nonetheless. Alan Dershowitz [lawyer; professor;
author] said the decision was a egregious error, the single most corrupt decision
in Supreme Court history, Vincent Bugliosi [attorney; author; prosecutor of
Charles Manson case, 1970-1971] called the five justices criminals. What do you
think about those kind of comments?
Z: I think it is inappropriate, even if you believe that, to say that, when you are
dealing with the judiciary. I believe that the justices are going to look back on
that decision as how they are going to be remembered and they are not going to
be proud of that. I do not think history will judge them kindly.
P: In fact, Justice John Paul Stevens [U.S. Supreme Court, 1975-present] in his
dissent said, I know the winner of the presidential election, the loser is perfectly
clear, it is the nation's confidence in the judge as an impartial guardian of the rule
Z: I thought Justice Stevens was extremely eloquent in his remarks.
P: Once this decision is done, and it is done per curiam, why do you think they
ultimately decided to do it for the Court when it is very clear that there were a lot
Z: I do not know.
P: Let me address some overall questions. How has this experience impacted you
Z: I am deeply disappointed in the United States Supreme Court for making what I
believe was a political decision. I believed at my very core that it was sacrosanct
in that you could always rely on them to rise above those politics. They could
have sent it to [the legislature and] the end result may have been exactly the
same. They had an opportunity to do [that]. I think that they have made a lot of
people very cynical about the legal process.
P: Do you think there was a constitutional crisis?
Z: Absolutely, I think it was a constitutional crisis. That is not justification for making
new law or ignoring old law.
P: Do these issues apply just to this case or will every election loser start
challenging on the Fourteenth Amendment?
Z: I also represented Elaine Bloom [unsuccessful Democratic candidate for U.S.
Congress, 2000; Florida state representative, 1974-1978, 1986-1996] when she
ran for Congress against Clay Shaw [U.S. Representative, 1981-present]. I
advised her not to challenge and she did not challenge that race. I think that it is
a very risky thing to do. I think that unless it is clear that there has been some
major wrongdoing, there is going to be hesitancy doing it. I do not think it is
going to dramatically change the way we elect people. I just think that history
again is going to judge what happened here as the ends justifying the means.
P: What impact will this election have on the state of Florida?
Z: Well, some people could argue that it has a very favorable impact because you
have the governor of the state of Florida as the brother of the president of the
United States. It most certainly will have an impact [in that] people will recognize
that the battleground will always be Florida. Regardless of what they do
anywhere else, they cannot ignore Florida.
P: You think it will help people vote more because now they know more about the
Z: I can only say from my own children that it was a great civics lesson in that no
one will ever say, why should I vote, my vote does not matter. Of course your
P: Finally, what about the Election Reform Act of 2001 which did away with Vote-O-
Matics? For the first time, you have real reform of the election law, with
provisional ballots, that sort of thing. Do you think that is going to eliminate the
Z: I have not studied the law. If you use the current equipment that is available, the
touch screens, the ability to know if you have not properly voted, the ability to
revote. I notice that when I voted even on the Vote-O-Matic, the person made it
very clear that if I made a mistake, I could get another ballot. I think that anything
that allows the intent of the voter to be clearly [understood as] the result of the
election, that is very good.
P: Is there anything we have not covered or anything you want to talk about?
Z: Nope. I think that you have done a very thorough job. I would say that the
lawyers in this case acted professionally in every respect that I am aware of. It
was a time where we really needed the public to see that there is a reason we
turn to our lawyers as opposed to generals, as they do in other countries. I am
proud of our profession, I am proud of how we handled it. That is all we can do
and the rest you have got to accept as things that you cannot control.
P: On that note, I want to thank you very much for your time.
[End of the interview.]