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FEP 18 Summary
Benedict P. Kuehne
February 15, 2001
Mr. Benedict Kuehne begins by giving his legal background and explaining how he came to be
an expert in Florida election law (page 1). Next he describes his personal experience on Election
Day and night 2000 (pages 2-6). He talks about his involvement in Tallahassee with the post-
election process and decisions that were made to protest the results in different counties (pages
6-16). He talks about making appeals to the Florida Supreme Courts and the Republicans move
to go directly to the federal courts (pages 16-17). He states the differences in the legal teams of
the Republican and Democratic parties (pages 17-19).
Mr. Kuehne goes into great detail discussing the process of handling issues in Palm Beach
County (pages 19-29). He discusses his strategy after Palm Beach County begins counting under
the new standard and the Republicans strategy of having big-name observers come in to sit with
the canvassing boards (pages 29-31). Next he characterizes the members of the Palm Beach
canvassing board, and talks about Katherine Harris' decision not to accept the late counts they
submitted two hours after the deadline she set (pages 31-33). He talks about the discrepancy in
the final vote after the canvassing board made their decision (pages 33-34).
Mr. Kuehne talks about his role in the Miami-Dade canvassing board and the hearing by Judge
Tobin over an injunction to stop the count (pages 34-38). Next he discusses the process of the
Miami-Dade canvassing board once they started the recount, the Republican mob that came
down to the elections department in Miami, and the seeming chaos in Miami-Dade County
Mr. Kuehne next states that the issues surrounding the recount were never a federal matter, but
were a state issue that should be handled by the Florida courts (pages 40-41). He talks about the
Florida Supreme Court's decisions about deadline dates and how their decision not to set a
standard effected the counts in different counties (pages 41-44).
Mr. Kuehne talks about his participation and the proceedings in the case in Judge Sanders Sauls'
court, and the attempt of the Democratic party to have him recused (pages 44-48). Next he
comments on the Florida Supreme Court's 4-3 decision (pages 48-50). He discusses the effect of
the military votes on the outcome of the election and the inconsistency in hypertechnicality
surrounding which ballots were counted (pages 50-52). Then he talks about the activities of the
elections supervisors in Seminole and Martin Counties of allowing ballots to leave the elections
offices (pages 52-53). Finally, he talks about the impact of this election on the state of Florida
and Florida politics (pages 53-54).
Interviewee: Benedict E. Kuehne
Interviewer Julian Pleasants
Date: February 15, 2001
P: This is February 15, 2001 and I am in Miami, Florida. I'm Julian Pleasants and
I'm speaking with Ben Kuehne. Would you very briefly give me your legal
background and explain how you came to be an expert in Florida election law.
K: Yes, professor. My name is Ben Kuehne. My full name is Benedict Kuehne. I
am a lawyer with a small litigation law firm in Miami and Fort Lauderdale called
Sale and Kuehne, P.A. I've been a lawyer since 1977 when I worked with and in
the U.S. Attorney's Office, the State Attorney's Office in Palm Beach County, the
Florida Attorney General's Office, then I went into private practice, primarily as a
criminal defense lawyer. I've had various iterations of my original private-practice
law firm and currently have a three lawyer law firm that is of counsel to a larger
law firm with offices in Fort Lauderdale and Miami. My practice is primarily
criminal defense litigation, complex civil litigation, some administrative work
representing individuals who are charged or accused of licensing violations -
professionals such as doctors and lawyers, and also some appellate work. [I
have] the election [law] background because of some public policy work that I
had done with some other lawyers and became most noted in a case that we
called the Miami mayoral election case involving an effort to overturn the results
of the election for the mayor of Miami.
P: This is Joe Carollo [Miami City Mayor, 1996-2001]?
K: The Joe Carollo case. Joe Carollo was the mayor who became mayor as a
result of the death of Steve Clark, who was the then-incumbent mayor. He held
that position for just a short time when the regular election was scheduled. He
initially lost that election due to what we believed was the occurrence of massive
fraudulent practices which propelled the declared victor into first place. We
successfully challenged that election. A group of lawyers challenged that
election and were able to obtain the judicial determination that Mayor Corollo had
actually won the election. That really started the major effort of myself and
others to get more involved in election cases. I had done election work as a
lawyer and as an activist for many years before, having been a former president
of the Florida Young Democrats and being politically active.
P: As I understand, the problem was primarily with absentee ballots.
K: Yes, Miami seemed to have revolutionized the ability of absentee ballots to affect
the outcome of an election. In that case, the revolution was not a very
satisfactory one. I would not necessarily spread directly from there, but that
absentee ballot fraud aspect was like a cancer on elections and we've seen that
occur in many other elections as well, not just in south Florida, but in other parts
of Florida and around the country.
P: Give me some indication of what Election Day 2000 was like for you.
K: Election Day, November 7, 2000, was quite a heady affair. I had been, or was at
the time, the co-chair of the [Al] Gore [unsuccessful Democratic presidential
candidate, 2000; U.S. Vice President, 1993-2001] [Joseph] Lieberman [U.S.
Senator from Connecticut, 1989-present; unsuccessful Democratic vice-
presidential candidate, 2000] election team in Miami-Dade County. I was very
active on Vice President Gore's team and was one of the overall coordinators,
not [for] staff, but [for] volunteer coordinators for Gore activity in south Florida,
particularly Miami-Dade County. I also headed up a project that the Democratic
party and lawyers have put together over a number of years: our election day
strike-force. I was general counsel of our election day strike-force which included
a group of as many as thirty lawyers available that day to work in the election's
central headquarters, our headquarters. Lawyers were situated at the
Department of Elections for any election problems there and lawyers were on call
at their office to help run down any problems, which could include things like
people being denied access to the polling places or a polling place [that] doesn't
open on time, or electioneering too close to the polling place.
We have a strike-force of lawyers trained in election law issues [who] are
available [which] has worked quite well over the last number of years. It's
something a group of lawyers, myself included, decided was needed, not just
[because of] the Miami mayor problem that we successfully litigated, but other
problems over the years. Lawyers can be very helpful. I started off the day very
early, had my teamwork meetings and spent most of the time at the headquarters
office in Miami for the Gore-Lieberman team, although I was running back and
forth to my law office as well. Between phone calls, running down problems,
running over to or having people run over to, the Division of Elections, we
thought we had covered many of the issues in Dade County. As the day wore
on, I was, because of my particular involvement, getting calls from Gore-
Lieberman team members in Tallahassee and others [asking], have you heard of
these problems? We're experiencing this problem. By the time the afternoon
came around, [I] had received a number of calls about the infamous butterfly
ballot in Palm Beach County. [I] called some people in Palm Beach County to
see what was going on. That seemed to be a consistent problem that was
filtering down to me to provide some advice and input. We also received other
issues, I did, around the state that there seemed to be some problems with
people being turned away from the polls. We didn't have any, at this time,
documentation of the numbers of these things going on, but some particular
areas people were calling and complaining, saying, I went to vote and my name
wasn't on the voter registration list. I'm being told I can't vote.
P: At this point are you going out and getting any affidavits on this issue?
K: I personally am requesting that people get signed documents, whether they be
affidavits or just letters, getting names and addresses from people, things that we
know we'll be able to follow up. Some of this information was Miami-Dade
County, others were [from] other areas. For example, Jacksonville seemed to be
[having] recurring problems of people showing up at the polls having voted the
last election and not being able to vote this time. Essentially, strike-first phone
calls were made, not just to lawyers, but to our election people, to our campaign
people in those areas saying, try to find information, try to document names and
addresses, try to get people in so we can get statements from them. We were
helped in this process by a lot of the union activists who were very supportive of
the Gore-Lieberman campaign and provided some of the legwork. That's sort of
a sense of the activity going on. It was fun, it was exciting, it was charged up, but
I don't think I, on that day, or anybody at the time, had any idea of the calamity
that awaited. As the election day wore on and polling places [were] being closed,
I personally felt great. Obviously I'm most interested in south Florida, that's
where I work, that was my overall charge for the Gore-Lieberman campaign, but
I'm interested in Florida generally. Our exit polling was terrific. The voting
turnout was terrific. The numbers that we were hearing [from] people through
informal precinct polling is terrific numbers for Vice-President Gore and
Lieberman better than what I anticipated we would have. I thought for sure we
won in Miami-Dade county. I'm hearing through other parts of the county that our
strongholds have done quite well.
P: In fact, he did win with fifty-three percent [in Dade County], is that correct?
K: Yes, and as a result of some local issues, people thought that would not happen,
but we certainly did get out the vote and worked very hard. We felt ebullient.
P: Are you referring to the Elian Gonzalez [Cuban boy rescued off the coast of
Florida in 1999, returned to his father in Cuba in 2000 after being forcibly seized
from his relatives] and the Cuban community?
K: Yes, the Elian Gonzalez issue was probably the major issue in south Florida for
the Cuban Americans, even though it was a colossal fabrication and scare on the
part of the Republicans to paint Gore as anti-Elian when in fact he was anything
but. He was incredibly supportive and tried to argue in favor of allowing the
courts to decide [on the Elian issue] as opposed to more direct action. The
Republicans tried to paint him in an unfair way. We were able to overcome that, I
think substantially. We closed the election feeling good. Not that the election
was without problems, but it was terrific. My wife and I headed off, I think after
changing, to the Fontainebleau Hotel which was the official victory location for
the Gore-Lieberman campaign in south Florida. We had a huge room and as
8:00, 9:00 [p.m.] rolled around, people were filling this place. It was a great
atmosphere. All the players were around from Attorney General [Bob]
Butterworth [Attorney General of Florida, 1986-present] to staff members to
activists to people who just wanted to let others know that they were pleased
about the election results and the way things had gone. Of course, we have all
the big screen TVs and we're watching the TV reporting.
P: Was Alex Penelas [Mayor, Miami-Dade County, 1996-present] there?
K: I don't think I saw Alex Penelas.
P: Did he give much support to Gore during the campaign?
K: I and others were very disappointed with Alex's visibility. As you know, Alex is a
prominent Cuban-American Democrat and at one time was viewed as a fellow
with statewide or national ambition and potentially some opportunities. He
became almost invisible in the important stages of the campaign, which was
shocking to us because Vice-President Gore and President [Bill] Clinton [U.S.
President, 1993-2001] had been so helpful to Alex Penelas throughout the years,
particularly during his time as Mayor of Miami-Dade County, and he just wasn't
there. Now, [there could be] lots of reasons as to why he wasn't there. I'm not
going to say that he didn't have other things to do, but it did seem that as a result
of the Elian Gonzalez affair that he put some distance [between himself and] the
campaign when in fact we would have expected him to be essentially the active,
honorary chair of [the] Gore-Lieberman [campaign] here in Miami-Dade County.
P: Gore was very disappointed when the recount was going on and Miami-Dade
stopped. He asked Penelas for help and apparently did not get it at that point.
K: I don't know the answer to what happened. I can tell you that as one of the
principal lawyers for the Gore-Lieberman team, as a lawyer who has developed
particular professional recognition in election matters in Miami-Dade County, I
was sorely disappointed almost to the point of being angry that the recount was
stopped in Miami-Dade County and [with] the mayor, because the elections
department is responsive to him, was not adamant that an opportunity be made
to count every Miami-Dade County voter's vote. I don't know what the
background was. I have my sense of things going on. That was probably the
final nail in it, that the mayor really was not that supportive, had other interests at
P: What happened back to the Fontainebleau Hotel on election night?
K: Lots of people were there. I think all the people I would have expected although
as I say, I don't recall seeing the mayor, but other mayors were there. Raul
Martinez, a longtime Democrat, a Democratic mayor of Hialeah, an important
city. Lots of other elected officials. It was a good, good feeling and the news
reports were suggesting good things. When one of the TV stations made an
early, as it turns out premature, call for Florida in Gore's favor, the emotion was
palpable. Everybody was just beaming, it was terrific. We had done the work
that we had set out to do. From that point, things took the turn that we've all read
and heard about but took a very odd turn as Florida was taken off the table, it
seemed, by the people reporting this. It became too close to call. Then some
disturbing questions [came up] about what column was it going to go in. I think
probably the biggest disappointment of all, at the time, was when Tennessee was
forecast [as] not going for the hometown candidate. There was not only severe
disappointment, but people began to wonder what was going on when Vice-
President Gore didn't win, at least it was forecast, was not winning his own state.
That bad omen, I think, played out through the rest of the night. As we got
closer to the end of the evening and I don't know exactly the time but I would say
in the 10:00-11:00 range, I am on my cell phone to the point that I have to
replace the battery because I'm talking to people in Tallahassee. I'm talking to
people in other parts of the state. I'm calling Gore headquarters to get a feel for
what's going on and also to report what I'm hearing and alerting them that we
may need, Florida may need some serious help. In saying that, not to be
alarmist, but the feeling of unease was not just a gut feeling, it was a sense that
something had gone wrong in Florida and I and others needed to let people know
that we perhaps were in not just for a long night, but we needed to gather our
So that early, I'm thinking this already having been through elections when I have
seen elections manipulated, although [on a] smaller scale. There are some
things you just know and some things you just feel. This one we knew. I began
close to midnight, calling I will refer periodically to my team, a group of lawyers
who are all friends of mine who have worked closely with me in a lot of these
public policy cases including election cases. I count them as Kendall Coffey
[attorney for Al Gore in 2000 election], one of my best friends, Joe Geller
[chairman, Miami-Dade County Democratic Party] [is] one of my best friends, and
others in the group. Joe Geller had been the chairman of the Miami-Dade
County Democratic Party and a longtime Democratic party activist who I would
note was also a Florida Young Democrats president, as was Kendall Coffey. I
am having at the Fontainebleau [Hotel], some conversations with Bob
Butterworth who was the Florida campaign chair or honorary campaign chair for
Gore-Lieberman, letting him know that he has got to call people in Tennessee
and in Tallahassee and let them know that we have some people lawyers -
[who are] ready, willing, and able if a decision is made that we need to do
something to help.
P: At this point were you aware of any fraud or any activities that might lead to legal
K: Nothing specific, but it was clear to me that this was going to be one of those too-
close-to-call elections. Knowing election law and certain issues under Florida
law, such as mandatory recounts, optional recounts, demanding recounts,
knowing that in a too-close-to-call election, absentee ballots have figured very,
very prominently, particularly in south Florida. Knowing that in a too-close-to-call
election, manipulation by a party or a candidate could have occurred and
knowing as I had, from activity that day, that there were reports of unusual
activity throughout Florida including the issues that I had talked about before,
caused me as a lawyer and as somebody who's been involved in these battles
before, to become alarmed. We needed to determine what had happened. What
was this issue that we heard about even more after the elections closed in Palm
Beach County about the butterfly ballot? What really happened? Can we get a
copy of that? Who's handling matters in Palm Beach County to track those
issues down? In my mind and as I explained to others, I had reason to believe
there was going to be need of some lawyers looking at things. Whether it meant
litigation, I wasn't thinking at the time. Lawyers certainly had to get on the
ground ready to make some decisions. I wanted Bob Butterworth, who is the
[Florida] Attorney General, in this capacity acting solely as a private citizen to
know that he could call upon us, my team, my group to help. Those phone calls
got longer and somewhat more alarming as we turned into the 1:00 hour, 2:00
hour, 3:00 hour. It seemed that the call was being made that Florida was being
put into the [George W.] Bush [U.S. President, 2001-present; Texas governor,
1995-2001] [Dick] Cheney [Vice-President of the U.S., 2001-present] side and I
personally couldn't believe it. There was no way, in my mind, that Florida had
gone for Bush. This was a Gore state and I expected it to remain a Gore state.
So that was election day and election night.
P: Explain how you got involved in Tallahassee with the post-election process. I
understand that you and Kendall Coffey went to Tallahassee and met with
Warren Christopher [U.S. Secretary of State, 1993; Deputy Secretary of State,
1977-1981] and Bill Daley [campaign manager for Al Gore in 2000 election].
Who called you and how did you get specifically involved?
K: That was day three. Day one I have explained, day one is Election Day. I get
home to my house in Coconut Grove at 5:00 [a.m.] or something like that, after
having worked all day of Election Day and basically spent all night trying to
gather as much information as possible. I get home, take a shower and I
immediately place three phone calls. I call Kendall Coffey [at] 6:00 in the
morning. He, like I am, is a very early riser, hadn't awakened yet and he thought I
was giving him a congratulatory call. He had been appointed U.S. Attorney by
President Clinton. A good Democrat, had run for office and just all-around a
great guy and a super friend and he had gone to bed with Florida being called for
Gore. Had no clue what had transpired over the hours after he had gone to bed
and I gave him the sad news. [I] asked him when he was going to be in the office
and said, we're going to have to talk. I summarized briefly my conversations with
the Gore-Lieberman people state, national, etc. He expressed his willingness
to be ready, willing, and able and available and said he was going to jump in the
shower and get to the office.
I then called Joe Geller, only Joe had not gone to sleep. He like me was vitally
interested in every item and I told him to be available, that we might have to do
some telephone discussions. I called my partner as well too, Jon Sale, to let him
know that I might not be in the office early enough, but if I was I was probably
was going to be distracted on this election work. I did run to the office and
started pulling Florida statutes, pulling out my election files and made a series of
additional phone calls to people on my strike-force, to lawyers around the state of
Florida. Early that morning Kendall and I regrouped telephonically and ended up
spending much of that day on various phone calls to people. I called Bob
Butterworth numerous times that day to let him know the concern we had the
night before was very valid and we've got to move fast. We're hearing reports of
all kinds of shenanigans in this election. Whether I call it fraud or not, I don't
want to give that label yet.
Potential problem areas as well as this general view that the vote just wasn't right
and knowing that, and hearing reports from election offices that incredible
numbers of people turned out to vote, but the amount of votes tabulated didn't
match those [numbers of] people. What we now know to be under-votes or over-
votes. Somebody goes to vote and walks away, but their number is not counted.
That was alarming as well. How widely has this happened? Although we've
seen it happen in other elections before and [are] acutely aware of the potential
that has to cause a change in elections, especially since the Gore get-out-the-
vote effort was far better than the Bush get-out-the-vote efforts. We're hearing
that in Palm Beach County people showed up to vote and the numbers of
registered voters didn't equal those people who showed up to vote [and] we
knew that statistically had to hurt Gore. Not just in Palm Beach County, in lots of
places. That was a real concern. That's how I spent most of what I call day two,
[making] phone calls trying to gather information and report what we knew.
Fortunately for me and as it turns out, for others, the people who were overall in
charge of the Florida campaign and the people in charge of the national
campaign knew me, certainly knew Bob Butterworth and knew my credentials
that I know what I'm talking about when it comes to election law, although I think
sometimes as well that I have considerable knowledge of just elections generally,
the politics part, but I'm looking at it more as a lawyer. I let it be known that we
were available to meet with anybody, anytime, to start discussing these issues
and five minutes from now is not too early, because these things will move like a
fire. That word was not lost on the Gore-Lieberman campaign.
I got a call from the Gore-Lieberman campaign and from Bob Butterworth asking
if Kendall and I were interested in flying to Tallahassee [on] day three for a
meeting that would be Thursday for a strategy session [to find out] what we
know, what we can find out. People were going to be coming into Florida to deal
with the Florida issues. We knew by day two that Florida was the too-close-to-
call state that made the difference. Whatever way Florida went, the election
would go, which was an incredibly heady feeling, that Florida really does control
the outcome of this election, which is frankly what I had said all along. Florida is
a potential model for the nation's future in terms of our population mix, the issues
that affect us. Florida really should be the deciding factor. We had hoped the
deciding factor would have worked the other way. I think ultimately, it would
have but for some judicial decisions. [I] called Kendall and he was ready to drop
anything and everything to fly up there with me to talk to whoever it was. We had
believed that the overall campaign chair was going to be there but were not sure
if Warren Christopher was going to be there, or Bill Daley, but expected the
prominent campaign members to be there.
P: Who had specifically chosen Christopher and Daley and do you know why?
K: I don't know the answer to that. It is my belief that Gore had personally asked
Daley and Christopher to consider providing him with guidance and advice on
Florida. I don't think anybody had any clue what the real Florida issues were at
the time. Daley, because of his political savvy and Warren Christopher, not only
because of his legal prominence but because he's been an advisor in times of
crisis and that's my sense, that's what I hear. I think a lot of the
recommendations [came] from Ron Klain [chief of staff to Vice-President Al Gore;
head of legal operation for Al Gore in 2000 election], who had been Gore's chief
of staff at one time and had been very active in the campaign [and] knew Warren
Christopher and worked on putting a team together. I had dealt with Ron Klain
briefly throughout the campaign, not that we were personally known to one
another but [I] certainly knew the name and his reputation.
P: My understanding is Klain was sort of a go-between between Gore and the
lawyers in Florida. Is that right?
K: Yes. We put together a virtual law firm but in the scheme of how that works, he -
Ron Klain was the principle conduit between the candidate and the lawyers,
because so many decisions needed to be made by the candidate. At least we
had a hands-on candidate. Our client Gore, principally, but Lieberman as well,
were hands-on, they wanted to know a lot of things. Ron Klain was the fellow
who had that daily communication, maybe hourly communication for all I know.
Many of the lawyers also had direct communication with Gore as the matters
transpired. [Klain] was the direct conduit.
P: How influential was he?
K: Very influential. Ron, as I have come to know him, is an incredible lawyer, he is
one of the brightest people I know, but has that ability to combine political savvy
with lawyering, which sometimes doesn't mix. He law-clerked as a young lawyer
with the United States Supreme Court, [he has a] Department of Justice
background. Good lawyer and I could not think of anybody more highly. More
important than that, he had the trust and the confidence of Vice-President Gore.
I think he was critical because there were some decisions we had to make in the
course of what transpired through the litigation that I believe he weighed in
heavily because they were lawyer-directed decisions as opposed to political-
P: Who really made the decisions on the ground? Would Christopher, Daley, Klain,
Chris Sauter [attorney for Al Gore in 2000 election] or someone else involved
make recommendations to Gore, who would make the final decision or would
some decisions be made, in effect, in Tallahassee?
K: Both, a combination, and it really depends on things. Gore was in the loop very
regularly. He really was an active and involved client.
P: Unlike Bush?
K: I don't know how Bush was. I've read all the books and I understand Bush really
was not in-the-loop on those things. Not surprising, but I did not know that at the
time. We did know that Gore was personally very interested, but that's his
personality. Some decisions really were calls by the Vice-President. Other
decisions were calls by the lawyers where the lawyers were confident that the
decision wouldn't have collateral negative consequences. For example, the
request to have a recount made at the county level was a request done by
Florida. The Vice-President was in-the-loop on that, but those initial requests
were done by the Democratic party. They were not done by the Gore-Lieberman
P: You're now talking about the recounts in the four counties?
K: No, we're talking about letter requests made to all the counties requesting that
what would be the mechanical recount take place.
P: This is the automatic one-percent recount?
K: Right, requests by the Democratic Party were made. I think we have sixty-
[seven] counties, sixty-[seven] letters were sent out by the Democratic Party to
the Supervisors of Elections saying we want the mechanical recount in all of the
counties. That was a party request. It certainly was not done without the input
and involvement of the campaign, but that wasn't a decision where the Vice-
President said this is what I want to do.
P: Wasn't that automatic by law?
K: Well, it's automatic but we also had make requests because there were some
issues about whether automatic means [whether] it is just as the result affects a
county or the entire election. We also wanted to go on record as making these
requests and also having that contact with the different counties. Those letters go
out and I don't remember if Bob Poe signed them. He's the chairman of the
Florida Democratic Party. He was with us in Tallahassee on Wednesday at our
makeshift headquarters office, being incredibly helpful, calling all the people he
could to get information from the different counties. He was a great resource and
P: It seems, having talked with elections supervisors, that in the automatic recount,
a large number of elections supervisors assumed that a recount meant a
[retabulation] of the vote. Others went back and actually recounted the ballots.
It's not clear [what] the intent of the law was, at least to the elections supervisors.
A lot of people criticize Katherine Harris [Florida Secretary of State, 1998-
present] for not stepping in and making it clear. Having talked to David Cardwell
[attorney, CNN elections analyst], the intent of the law was for a recount of the
votes, not just re-tallying the totals.
K: There was confusion [on that issue] and I have to say that confusion was
amazing because it was not obvious to anybody initially that there was confusion,
that these recounts did take place in all the counties. We didn't know for several
days that some counties just re-tabulated [votes], [but] didn't recount. For
example, there were counties with the optical-scan voting where, like [a] lottery
ticket with bubbles, you fill in the ballot with a Number Two pencil or pen. Some
of those counties merely looked at the numbers that had been recorded on the
computer and counted them up again to make sure that they had one hundred
people showing up to vote, one hundred ballots counted and what [saw] the
results were without re-scanning them. We didn't learn that for days and I was
shocked, because I've read the statute, I'm familiar with it, and I had no idea that
elections supervisors, experts supposedly, would view the recount statute as
being ambiguous. Do we just re-tabulate or recount?
Apparently, some counties did not mechanically feed in the ballots, whatever kind
they were, [to] see if the numbers jived. All they did, essentially, was take their
counters like in the old days where you had machines [where] you turned the
lever, and [they] would look at the totals on the machines to see if [they had]
properly recorded the totals and added them up correctly. That was a big
difference and became a point of debate. When we found out that some counties
did not actually send the ballots through the machines again, we asked for some
help. The State Department of Elections was, I thought early on, completely
uninterested in helping. It became clear to me in the first couple days that the
State Division of Elections was a partisan branch of government. They weren't
doing their job.
P: I think this is something that has been sort of passed over. If there had been a
formal recount, it could have made a significant difference in the votes. If the law
refers to the intent of the voter, they could have used the canvassing boards,
even at that point, to look at these ballots. If Gore had ever gotten into the lead
then the whole process could have been very different.
K: Exactly right. That became sort of the legal versus political view, [that] whoever
held the most votes before any legal challenges would be the presumed heir-
apparent. We understood, as did the Bush team, that we wanted our candidate
to have the most votes because, frankly, he did have the most votes in Florida.
The Bush team needed to do everything they could to have no changes made.
Any change would have hurt Bush. They knew that. They wanted, and they
worked very hard from day one to make sure, [that] however election day ended,
there would be no change in the outcome. To the victor belong the spoils, I
guess. That process early on was very important. Chris Sauter was brought in
that day. He was in Tallahassee [on] day three, Wednesday. I had never met
him before. [I] had heard of him because of recount issues, something that I
certainly had been familiar with, and Kendall and I had dealt with these issues
before. I think we called him the dean of recounts and I was incredibly pleased
to meet him. He's a great guy, very smart lawyer who, I think, wrote the book on
recounts and had really good understanding of recounts. [He] didn't know Florida
law, but Kendall and I gave him more than a simple briefing on [it]. He gave us a
primer on recounts. Strategies, what you look at, how a recount is affected by
demographics, was fascinating, an eye-opener to me. My view, and I don't say
my view personally, but my view with Kendall, was [that] we need to affect a
recount of Florida's vote. Period. Florida, from Key West to Tallahassee to the
Panhandle. That's what we need to do.
P: At this point, did you, like Dexter Douglass [attorney for Al Gore in 2000 election]
think that you ought to go immediately to the contest rather than proceed with the
K: No, not at all, and that was our discussion. We get to Tallahassee, Kendall and I,
and we immediately go to the makeshift offices [where] phone lines were getting
installed, computers are there, it's a lot of hectic activity. Normally the day after
an election, you don't see anybody except somebody who is straggling around
who just left the post-election party. It was like election day all over again with
requests for information, phone calls coming in, e-mail requests. Kendall and I
were there to get a handle on what was going on and also to begin trying to
figure out who was going to be needed to help this process. We did not know at
this stage what this process would be. By late morning, we are told that
Secretary [Warren] Christopher and Secretary Daley are available to see us. We
knew that they were flying in. They want a briefing on Florida law. We had been
told earlier what they were expecting. Now, I did not know either of them. I don't
think Kendall knew either of them, but they certainly had been briefed well on our
backgrounds and I think Bob Butterworth had probably done most of the work
explaining to them who we were and why he was so high on us. I understand
that Bob Butterworth's recommendation was a very strong one and also the
President's [Bill Clinton] recommendation. The President knew Kendall, having
appointed him U.S. Attorney, knew of me. Certainly knew of me from the
activities we had done and had put the word out that in Florida we're the go-to
guys. We meet with Warren Christopher and Bill Daley, and Ron Klain was in
and out of the room.
It was one of the most incredible meetings I've ever attended, because for
[about] an hour, could have been a little longer, could have been a little less, it
was as though Warren Christopher and Bill Daley were sucking our brains dry on
Florida election work. Warren Christopher the thought I [am] left [with] is being
an associate at a law firm and being asked by the senior partner of the associate
to brief the senior partner on a project and having to give your information in
concise form and being able to respond to that senior partner's questions. It was
like that, where you really had to be on, in the sense of being a lawyer. It wasn't
just a B.S. [bullshit] session. Kendall and I explained what we understood to be
Florida law. We had some statutes with us. [We] went over various
combinations and analysis, talked about protest, talked about automatic
recounts, talked about the role of the supervisor of elections, talked about the
role of the parties versus the candidates. I talked about protests and contests,
timelines, how quickly these things move, talked about coordination and had to
answer tough, tough questions. Not only questions about what is the law, but
even our opinion. How would we develop a strategy? Which was in some
sense, one might say, flying by the seat of our pants, but we knew we'd be asked
things. Frankly, we would be hoping that we'd be asked our opinion because we
wanted to be involved in the process. We knew, as often happens in politics, in
elections, national candidates come down and put together a team and
oftentimes don't pay enough attention to the people who know the community.
The Gore-Lieberman team was not like that. They knew that Florida people
knew what to do and they would bring down national people to help, but not
people who came in with all the answers. We knew that the philosophy was [to]
bring in the local experts as well. We make our recommendations that recounts
are necessary, what recounts need to be done. We talked about protest versus
We're asked about other people, what they think about others. We leave the
meeting feeling great about it, but not knowing what's going to happen, not
knowing if the Vice-President is going to agree with any of the analysis we've put
together. We go back to the makeshift office, we work for a few more hours. I'm
working on a project that has me pretty busy when they want us to go back to
see the two secretaries. Kendall is able to break away and go and that's the
press conference that really started the introduction to the national public that the
Gore-Lieberman team is going to, I think they said, going to seek a review of the
Florida vote. That was the big press conference in Tallahassee, making an
announcement and that set the stage.
[End of side Al]
K: The press conference happens, Kendall works his way back. Meanwhile, I'm still
at the office doing work, making phone calls, trying to get voting information from
Supervisors of Elections around the state, information from the Secretary of
State, getting public records request forms ready to fill out, trying to decide who's
going to sign them. Do we want county chairs to sign them? Do we want the
state party chair to sign them? Lots of [preparing to] get ready if the call is made,
if that trigger is pulled, get ready to run. We wanted to have as much work as
possible done. Also [there was] an effort to get paralegals involved, people who
we knew could do some legwork for us. It was incredibly draining but also
P: Were you involved in the decision to protest the Dade, Broward, Volusia and
Palm Beach County results and how did that decision come about?
K: That decision was probably one of the earliest, most important, but most difficult
decisions to make because there was a strong view that a protest needs to be
made in every county of the state versus a view that we need to be very bullet-
driven with our request [where] only those counties that we can say with
clarification why we have a reason for a protest. [There were even] some who
said, we look at Florida law and let's forget this whole protest process, let's work
directly on a contest, move this thing along. My view, Kendall's view and other
lawyers that were part of our group, what I continue to call my team or our team,
were of the strong view that we need to make a protest in every single county.
The reason is, we don't care if a county was lopsided for one candidate or the
other. The election result is a Florida election result, it's not a county election
result. If there is an impact in one county, that's enough cause, if we need a
cause, to protest every county.
P: All sixty-seven of those have to be individually requested, correct?
P: That requires a lot of resources.
K: Sixty-seven counties need to be done and your question is a great one. The
question is how do we do this? Physically, how do we do this? From a lawyers'
point of view, my first decision and my recommendation was [that] we need to do
it. Second, we'll figure out how to do it, but we need to do it and I articulated the
reasons why. Kendall did the same. We were of like mind on, I think, all these
decisions. I thought because of the campaign that we had run so successfully in
Florida and having been a co-chair of the Gore-Lieberman campaign, a senior
official in the campaign, that we had the people who could do it. I knew and our
group knew enough lawyers in every county. We had enough Democratic
activists in every county that we physically could do it. That would not be a
problem. There was this political-driven concern, what's it going to look like if we
say we want to protest every county. Does it look like we're doing a scatter-gun
we don't have anything to go for, we simply want to do it? __ in all the various
counties, but the concern on the political side is, what is it going to look like if this
scatter-gun approach is done and the campaign can't articulate why we chose
one county or another county. We understood and certainly accepted the
potential clash between the political side and the lawyer's side.
P: Your view was that they should count all the votes?
K: Count all the votes, exactly that was our view. Count all the votes. We thought it
really meant count all the votes. We thought that was terrific. That's the
message that we wanted to send. Count all the votes. We knew we'd get
resistance from the other side and we thought the message could be turned to
say, instead of [asking] why are you asking to have all these votes counted, [to]
why are you, Bush-Cheney, trying to obstruct all the votes from being counted?
I'd have to say even though we're lawyers and we made very clear that we were
lawyers, we weren't the PR [public relations] people, we weren't the message
people. We know, I know, my team knows from election litigation that you can
win an election litigation if you have the facts, you have to have the facts. But
you can certainly make it easier to get the facts if the media message is on-point
and on your side. What happens? People start volunteering to help. You hear
stories when word gets out that you're doing the right thing. Information comes
to you. One of the principle reasons we believed that a protest was necessary
under the rule, under the statues, is because it would allow us some necessary
time to do the work that we knew needed to be done to win a contest. That we
couldn't just turn around and file a contest tomorrow and be ready to litigate a
contest without doing some considerable work. We knew during the protest time
that would help us, not only potentially change the outcome which we thought
would happen, but we'd have resources being developed and then we could
decide where we want to direct those resources.
P: Particularly in light of what Secretary of State Harris said, you only had at this
point four or five days to do that.
K: Technically, given Harris's (we thought even then) completely distorted view of
the election law, we had very little time.
P: If you had done the protest in all sixty-seven counties and completed the vote, do
you think that would have won the election for Gore?
K: I don't have a crystal ball. I didn't make the recommendation because I thought
we would be in a worse position if we did the protest. Today, to this day,
knowing what I know having read every book that's out there, having spoken with
people, I think had we done a protest, we would not have been the one who
would be filing the contest. I think the Bush team would have been filing the
contest. I say that just because of items we have learned from the different
counties. I think it would have been a very different result. Frankly, I think it
would have given an opportunity for the state itself to get involved as opposed to
what seemed to be in some respects, [that] this is an effort to have the south
Florida votes control the outcome of the election. The political message on the
Bush side saying, that's not who Florida is, Florida is not south Florida. Our
position wasn't [just applied to] south Florida. It was this is Florida, this is count
all the votes. I think it would have made a difference.
P: Who finally made the decision to protest the four south Florida counties? One of
the things Ron Klain said was that there were fifty-one counties that Bush had
carried and they weren't sure about cooperation and secondly just getting the
resources could be a problem. Ron Klain said at one point, we need to count as
few votes as possible. What do you think he meant by that?
K: Let me give you three things in answer to that. Ultimately, I can't tell you who
made the call. I know that the Vice-President approved the decision. That to me
means that he ultimately made the call. I think the recommendation to him I
believe from what I've been told, I wasn't there was [to] go with these four
counties. That came about in a very interesting way. Chris Sauter who has,
certainly [out] of what became the burgeoning team, more experience in this than
anybody, had in his view experiential results based on when you seek recounts,
when you seek protests. He has demographics that he looks at. He looks at
things like over-[vote]s and under-[vote]s. While I won't say he has a
mathematical formula, it gets pretty close to that. He looks at counties that were
carried by one candidate or another. He looks at Democratic registration in a
county. Remember, he has done a lot of this work, but he knows that ultimately
most of these decisions become partisan decisions, party-politics decisions,
although he's done a bunch of cases that are non-partisan as well. From looking
at it, he has a real hand on demographics. He made a presentation to us. I think
he wanted to convince us because it was a team approach. [There were] a lot of
collegial decisions that [were] very persuasive in terms of why we need to use
the bullet approach instead of the shotgun approach. Target our shots selectively
to counties that had good Democratic registration, to counties that had significant
numbers of votes that didn't get counted.
P: Both over-votes and under-votes?
K: Both over and under, looking at those numbers. How many people showed up at
the polls and how many votes did you actually count and what that spread is?
He thought that over-[votes and] under-[vote]s were important as well, in terms of
an under-vote versus an over-vote and what's the likelihood that you could
convert an over-vote into a real vote versus an under-vote into a real vote into
a counted vote. I think they're all real votes.
P: It's usually harder for an over-vote, right?
K: His view is exactly that. With an under-vote you've got voter intent [as a
standard], and we had already done our research memos on Florida being an
intent-of-the-voter state and that was real important from the Florida perspective.
If you have significant numbers of under-votes that's really where your success
is going to come, as opposed to an over-vote where somebody votes twice. [It is]
much easier to discard that as an invalid vote as opposed to somebody who
comes to the polling place, takes a ballot and this is almost like common sense
thinking would then give their ballot to somebody saying, I've decided not to
vote after showing up particularly on the most important race. Chris had a lot of
this analysis. It was certainly very persuasive. He said, we need to limit [the
protest] to these counties, [and] not only because we think these counties were
the ones that were royally problematic, troublesome, [with] huge numbers of
voters didn't have their votes counted. He thought that we could handle it and
the outcome would be successful for us.
P: In that case, why not Duval County?
K: Duval was one of these decisions. I spent a lot of time in Duval. I have lots of
friends in Jacksonville, lots of requests [came] to me from friends saying Ben, we
need help here, we want to help you. There was a belief that Duval was, on the
political side, a difficult county to deal with. I was not of that view, that it was a
conservative county and that the canvassing board in Duval County, which had
an odd canvassing board under the statute, [would make things more difficult].
Instead of a three-person canvassing board they have a four-person canvassing
board where the city attorney is an actual member of the canvassing board. [It is]
a little different and that's because of their charter process. I had looked at
challenging that because I just didn't think it was accurate but decided there was
no need for a challenge. It was viewed as a difficult place, from the decision
makers, to have any progress. Yet, from the problem side of counties, that was a
county where the problems were huge, and as it turns out in retrospect, I don't
mean to say that there were inappropriate political calculations because I don't
think there were. Our team became known as team recount and I've got a little
something I'm going to show you. Soon, we became known as team recount, but
our whole group really truly honestly believed that we weren't playing politics, we
were trying to validate the Florida voters. The question was how could we do it in
a way to make it meaningful to have this make sense.
That's ultimately why the decision of narrowing the counties [was made] -
because we could explain why we were going about picking those counties.
Chris's presentation was more along the lines of [why] we've got to be specific,
not general. I think there was, on the political side, and I forget the guy's name
who was involved, maybe you know it, who was involved in doing political
forecasting. I think [his name] began with an H. [He] handled the media kind of
stuff. The decision was made that we can sell our position better, validate our
position to the public if we limit this process. I didn't think that was the right
decision, but I'm a team player. Absolutely, we have a reason to do it, let's put
our resources in those four locations.
P: Obviously the Florida Supreme Court, by law, can overturn an election if they
determine that the will of the people has not been discerned. At this point, were
you thinking at all about making appeals to the Florida Supreme Court or were
you thinking about local appeals?
K: Yes. One of the benefits we brought, I brought and Kendall brought to this team
is a real knowledge of the Florida players and Florida law. We knew by day
three, the Tallahassee day, that this election was going to end up in court. We
didn't know what court. We really thought this was going to be decided by the
Florida Supreme Court because traditionally election matters are handled by the
Florida courts. We also knew that there would be potential for federal challenges
and we felt that every step of the way we had to not only validate what we
wanted to do, we had to analyze what the potential consequences and recourse
were. We, at least I, felt very comfortable with the Florida Supreme Court, I know
the justices, I lived Florida Supreme Court litigation for years. I know their sense,
I know how they handle election cases. We wanted to have a record of
proceedings, and not just the legal record, a record in the minds of the people,
the newspaper record, the TV record that gave the Florida Supreme Court an
understanding that something catastrophic had happened in Florida and they
were the guardians of the Florida vote. That's really how we had planned this
entire strategy from day-one. We could count on the Florida Supreme Court to
validate the rights of every voter to have their vote counted.
P: From talking with Joe Klock [attorney representing Katherine Harris during 2000
election] it appears the Republicans are doing exactly the opposite. They wanted
to get it into the Eleventh Court of Appeals, they want to get into the federal
courts because they thought they stood a better chance there.
K: That's correct. They wanted the federal courts I think more than anything [that]
this is what is amazing, how public perception really changes they wanted to
throw as many roadblocks in the process and they thought the federal court
would be an opportunity for a pretty big roadblock and they thought if the federal
courts were involved, the state courts would back off. As it turns out their
calculation was wrong until the U.S. Supreme Court time.
P: Is this a stalling tactic?
K: Absolutely [it is a] stalling tactic. That was their view. They had a message. The
message was [that] we've counted and recounted, we don't need to selectively
count. It's done, it's over. Our view was, count all the votes. There was some
criticism. If you're saying count all the votes, why do you just want to count some
votes [and] not all the votes. That we had to leave for the media message
people to explain.
P: Some of the analysts in the end say that they thought the Republicans won the
battle of public relations, particularly with military votes and that sort of thing
which we'll get to later. Is that your take on that view?
K: I certainly believe that the message crafted by Bush-Cheney was sharper and
more repetitive than the message [given] by Gore-Lieberman, by our team. I say
that because of the way they put the process together. It may be the difference
between Republicans and Democrats, generally. People always say that
Democrats are a party of friends arguing among one another because the nature
of Democrats is to give everybody an opportunity for input and decision-making
gets done at some point, but [there is] lots of input. I don't mean this in a
negative way, I've never been registered as a Republican. I have lots of friends
who are Republicans, I represent Republican elected officials in matters.
[Republicans] seem to be much more [of the belief] that somebody makes the
decision and everybody down the line immediately does it. They're just waiting
to be told what to do. Whereas the Democratic view is kind of upstream. Lots of
people are helping make decisions and the person upstairs ultimately decides
what to do. They were driven by a central figure who told them what to do and
they were able to stay on-message a lot better in the early days than we were.
P: Is this individual Jim Baker [U.S. Secretary of State, 1989-1992; Campaign
Manager for President George Bush, 1988]?
K: Yes, Jim Baker, who I thought of all [people involved], gave lawyers the worst
name from this whole thing. I know he had a job to do and I know that he's an
important person, but his disrespect of the legal system in Florida was appalling.
P: Particularly his comments on the Florida Supreme Court.
K: If he had been a Florida lawyer, it would be grounds for bar discipline the way
he disparaged the Florida court system, the Florida Supreme Court. It was
disgraceful, it was shocking for a man who supposedly is a statesman. It was
outrageous. What he was doing was fanning the flames of those conservative
activists who would do anything. We've seen what they did to win an election,
even if it meant stealing an election.
P: On the other hand, the Republican party and the people I've talked to, were
extraordinarily well-organized in terms of the lawyers and monies that they
appropriated. People were on-site very quickly and the national party gave
[support]. It looks like, just from an outside observer, they really were better
K: That's interesting to say. I hear that. I disagree. I think we plainly outworked
them. I think we plainly had better people in places more quickly than they did. I
think they reacted well, but we initiated most things and I thought we were far
better organized. Now, there is something to the way you posed the question.
Among the lawyers, they had what we would refer to as sort of the large-firm
lawyer representation. We were a group of small-firm lawyers. They had a
number of big firms and big-firm resources which allowed them perhaps to be
more organized or more orderly early on. Trial lawyers tend to work in small
groups. We were a bunch of trial lawyers who were working together for the first
time and we ended up working together great when David Boies [attorney for Al
Gore in 2000 election] came on. He was one of the best lawyer team leaders I've
ever encountered. I disagree that they were better organized. I think their law
firms did jump when somebody said jump they asked, how high? I think that
we had a far better, quicker response than they did.
P: Explain the process whereby you ended up deciding how to deal with the issues
in Palm Beach.
K: Once the decision was made to protest in four selective counties, the next
question was leadership. Leadership and bodies. Who's going to run each
county? Miami-Dade County was very easy because the principal core of all of
this was coming from Miami-Dade County. Myself, Kendall, Joe Geller had a
successfully organized team of experienced people. That was very easy.
Broward County is a Democratic party stronghold. Mitch Berger [attorney for Al
Gore in 2000 election] who was very, very active in the campaign is there. I'm
active in Broward County. Broward County was a county that was pretty easy to
have an abundance of selections [in]. Palm Beach County was an important
county for us, very big. The process was very different, [an] organized process
but in the scheme of how it worked, [there was] nobody with considerable
election law experience. Great lawyers but nobody with election law experience.
I had practiced in Palm Beach County for a number of years in my early days.
P: You were with the State Attorney's office?
K: I was in the State Attorney's office and the Attorney General's office there in
Palm Beach County. I knew a lot of people and I wouldn't say I invited myself,
[but I was] very willing to go to Palm Beach County and head up that effort
because I knew Dade County would be taken care of, Broward would and also I
knew that by staying in Palm Beach County, I'd still be able to help coordinate
Broward matters and still be very involved in Dade because I expected south
Florida to be the hotbed of activity. I ended up spending more than a couple
days in Palm Beach County.
P: You were there with Jack Corrigan [attorney for Al Gore in 2000 election] and
David Sullivan [attorney for Al Gore in 2000 election], Dennis Newman [attorney
for Al Gore in 2000 election]. This was your team, but there were separate
lawyers because Bruce Rogow [attorney for Al Gore in 2000 election]
represented Theresa LePore [Supervisor of Elections, Palm Beach County].
K: That's correct. Bruce Rogow was doing legal work and Bob Montgomery
[attorney for Theresa LePore in 2000 election] was her principal lawyer as well.
A couple of interesting stories if you want to hear. First of all, I did not know Jack
Corrigan or David Sullivan or Dennis Newman until Palm Beach County and have
come to love them like brothers. One of the things we asked for in the early days
was resources. Who do we know who can help since we wanted help?
Fortunately, [with] the Chris Sauter-related connection, there are a wide group of
people who know and have done recounts. The boys from Boston...
P: Dennis Wholey?
K: His name will come to me, he had a group of people [and] they were just great.
Jack Corrigan and David Sullivan and Dennis Newman came down and they
became part of my team and they were fantastic. Not only did they know what
was going on, but they were the greatest people to work with. [They were] not
coming down with preconceived notions. That was really Palm Beach County.
We had a huge array of volunteers and help and volunteer lawyers and other
people and I called friends down from other states and other counties to work, to
volunteer. They became the linchpin of the executive team and were terrific. We
would spend twenty-four hours a day, for days on end with them, I would. I
learned a lot from them. This was really amazing. The very first day we're in
Palm Beach making the request to the canvassing board for the recount, it's one
of these requests, they hold this hearing in a public place, basically the central
lobby of the county government building. [It was] jam-packed and the canvassing
board is meeting and I'm introduced as the lawyer at that time for the Florida
Democratic Party and the Gore-Lieberman lawyer, but this was principally being
led by the Florida Democratic party in Palm Beach County at that time. Nobody
knew what to do. This was something that hadn't happened ever on this stage,
but certainly hadn't happened in Palm Beach County in ten years.
The supervisor of elections team was relatively new. I did not know Theresa
LePore. [I] had known the prior supervisor of elections whose name will come to
me, who Theresa LePore had worked for as her number-two person. I am
introduced to the county attorney who I did not know, but I knew some of the
county attorney people. In fact, one of the people, Leon St. John [Palm Beach
County attorney] who was the lawyer tasked to handle the representation for the
county on this, is a fellow I knew from my Palm Beach County days. He had
been a young lawyer, as I was, back then. A woman lawyer [Kerey Carpenter] is
introduced to me and for a whole day [I] believe that she's a lawyer for the Palm
Beach County supervisor of elections. I learn only later that she is a lawyer for
Katherine Harris and I am incredibly alarmed. Not only because she's there and
[wondering] why the Secretary of State [and] Department of Elections [has] a
lawyer here in Palm Beach County when this is a Palm Beach County matter, but
then I see that she is with the Supervisor of Elections and the canvassing board
all the time as though she is their lawyer. I'm incredibly alarmed because I know
who and what Katherine Harris is. I know immediately that this lawyer is there to
make sure nothing happens. I know that Tallahassee is now trying to direct the
show and we become very concerned. We redouble our efforts to make sure
that our position is made very clear.
P: In talking with Carol Roberts [vice-chair, Palm Beach County Commission;
member, Palm Beach County canvassing board], she noted that she was very
concerned. Also talking with Judge Charles Burton [Judge, County Court, Palm
Beach County; chairman, Palm Beach County Canvassing Board], both of them
assumed that she was there giving legal advice. At least they knew she was
from Secretary Harris's office. They thought she was giving legal advice when it
turned out, according to Carol Roberts, that she was in fact giving political
K: That was of great concern and dismay. First of all, I understand that she worked
for the Department of Elections but her knowledge of election law was a novice's
knowledge, even though she was supposedly an expert.
P: Kerey Carpenter [assistant general counsel for the Florida Department of State].
K: Kerey Carpenter, that's it, Kerey Carpenter. Thank you. Very pleasant person
except when you disagreed with her. I could tell she was not interested in
anything anybody had to say if it wasn't what she knew to be the case. In
discussions with her, her knowledge of election law was, I'm not going to say
zero because that would be unfair, but it didn't come anywhere close to my
knowledge and to my team's knowledge. Jack Corrigan, who didn't know Florida
law before I gave him a primer, studied and read and knew more Florida election
law than she did. Be that as it may, she started saying things about the
Department-this and the Department-that [which] are plainly directives. This is
what the Department wants to be done. I end up having, I won't necessarily say
having to debate her, but end up having to explain over and over again to the
canvassing board and the lawyer for the canvassing board [as to] what the law
says and what their responsibility is and how this is not being driven by the
Secretary of State or the Department of Elections. It was a real battle. You
mentioned that some say the Bush team was more organized and had their
people in place, but by the same token they say, which I think is false, Jeb Bush
[Florida governor, 1999-present] had nothing to do with this. Kerey Carpenter
didn't show up in Palm Beach County by accident. She didn't show up in Palm
Beach County because she thought she could offer advice. She didn't show up
in Palm Beach County, I'm convinced, now I'm speculating, because Katherine
Harris says, Kerey, I want you down there. She was sent down there because
Katherine Harris was told by the Bush team, Bush-Cheney, get somebody in all
these counties. We need to not only know what's going on, we need to be able
to stop what's going on. They put their people in the areas where they expected
to be. Now, was Jeb Bush involved in that? Nobody can convince me ever -
even if they ran tape twenty-four hours a day in the governor's office that Jeb
Bush was not, through his people, directing or authorizing Katherine Harris to do
what she did. First of all, she's not smart enough nor knowledgeable to do all
this on her own. Somebody was directing her. If it didn't come out of Jeb Bush's
P: It could have been Mac Stipanovich [chief of staff for Governor Bob Martinez].
K: Right, it came from one of his people and Stipanovich was the name we
constantly heard. I think they said he was living in the Secretary of State's office
or the Department of Elections Office for days at a time, that he was almost there
all the time. Now, why? Only for political reasons and they turned that office into
a political office.
P: It's also important to note that Judge Charles Burton had never done this before.
He had just been sort of saddled with this responsibility and therefore, at least
from what I learned from Carol Roberts and Judge Burton, was somewhat
influenced by Kerey Carpenter, not knowing what the law was.
K: Judge Burton is an interesting fellow. I know him well now, I didn't know him
then. I heard good things about him but plainly he was brand-new. I had a
dialogue with him because he's the chair of the canvassing board. [Interference]
There was a dialogue early on where he was discounting what I said. I
responded to him, I said, Judge, I've done this before. If you just listen to what
I'm telling you, this is the voice of experience. I'm not telling you this because I'm
here I'm paraphrasing what I said but it was pretty much like this for one side
or the other, this is an important process, I want this to work. If you just listen to
what I'm saying, this is the way to do it because it's the right way and it will work.
Over time, I think that my group and I persuaded them that we knew what we
were doing, number one and number two, we weren't there for strictly political
reasons. We wanted it to work out right. Some would say, looking at the history,
that's not right, they were just political operatives doing it. Some were, but the
core lawyers were there, I know I was, I know [the attorneys] in Dade and
Broward, were there to make sure it was done right. The world was watching, we
wanted it to be done right. I think Burton realized that eventually, but it took a
little while and some catastrophic decisions were made, wrong decisions were
made by the canvassing board because they relied on Kerey Carpenter for
impartial advice and initially discounted my suggestions because they thought it
was politically tinged or partisan when in fact it really was the opposite.
P: One example of that would be when she told Judge Burton that he needed to
request an official opinion from the Secretary of State's office, not explaining that
if he made the request, that opinion would then be binding.
K: That was among the most scandalous bits of advice I've ever encountered and I
don't know what kind of mischief was intended but she misled the canvassing
board. She obviously knew what was going to happen. I'm convinced the
opinion that she got the canvassing board to solicit had been written already, in
fact she probably had a draft copy in her hands, for all I know. It was an effort by
the Bush-Cheney group, Katherine Harris, to stop any further activity in Palm
Beach County and actively stop them elsewhere. I argued in two respects. I
thought they had both been accepted. First was to get an opinion from the
Attorney General who I knew would be able to give advice. As I explained, the
Attorney General was the one who decides how to help with execution of the law.
The Attorney General's advice had always been sought out and was terrific.
They could get that view. When Burton suggested let's do both, based on some
prompting from me, from my presentation, the commission approved getting
both, but they approved it with the very specific view that they were [only] asking
for information that they could then use to consider how to proceed. That was
my view at the time, [that] it wasn't a request for a formal opinion. It was a
request for informal advice. Burton then prepared a letter. This is where some of
what Judge Burton did gave an appearance of favoritism. I still don't know if [it]
was favoritism or not, but he obviously was very persuaded by Kerey Carpenter
because the request to the Department of Elections was sent out immediately. It
was not even reviewed by the other members.
P: He had the authority to do that, right?
K: He did, but the way he wrote the letter was requesting a formal opinion. Had he
passed it around to the others or even had it reviewed, I know that Carol Roberts
would have said, that's not what we asked you to do. You're not authorized to
ask for that. He wasn't authorized to ask for a formal opinion and that's what he
did. The language that was used, plainly had to have been language that was
suggested by Kerey Carpenter because it asks for a formal opinion.
P: Carol Roberts was very upset with him about that.
K: When we found that letter? Incredibly upset and every right to be. If Burton did it
innocently, then he was just deluded. If he did it purposely then he was not
acting in his capacity as the neutral chairman. I think he was overcome by Kerey
Carpenter in that regard.
P: How would you assess his performance overall? The Democrats later claim that
he was not lenient enough in judging dimples on ballots. Do you think he was
K: I think he was unprepared and largely incapable of doing what he was supposed
to do. I think he tried to be fair, but in the sense that there could be
incompetence at that level, he was incompetent initially. Didn't have any real
clue as to what the purpose behind this process was. In recounts, historically
there is a tension between the bureaucratic administrators and the public. The
bureaucrats, the supervisor of elections never want to do a recount. Why? It
undermines their job. If the count is bad and a recount comes up with something
different, the supervisor of elections is at risk. Around the country, supervisors of
elections never want to do recounts. The public wants recounts generally and
candidates want recounts. That's the tension. He very quickly sided with those
people who basically thought bureaucrats were more important than people.
Decisions were based on [whether] this is better for the bureaucracy. Was that
his personal philosophy? I don't know. I don't know that he had any personal
philosophy before. He just did not understand the nature of election recounts. I
do want to mention another thing that really set me off with Burton. That letter
was sent to the Department of Elections improperly with inappropriate request
language. The letter to the Attorney General was not sent for about six hours
later even though they were supposed to be sent at the same time and even
though I kept calling the canvassing board, the county attorney [about] when is
that letter going to get out, when is that letter going to get out. I blame Burton on
this. I think there was a purposeful effort to delay the receipt of the Attorney
General's opinion so they could make decisions based only on the Division of
Elections. Palm Beach County gets the opinion from the Secretary of State's
office, Department of Elections, before or at the same time that Palm Beach is
first sending out the request letter to the Attorney General. I had to end up
calling the Attorney General's office to let them know that an official request had
been made for an opinion, this is what it was going to say. They kept calling me
to say, we haven't gotten anything yet and they kept calling the county attorney's
office saying, we haven't gotten anything yet. The county attorney wouldn't even
call them back. That suggested to me that there was some manipulation. Even
though I don't want to say they were acting in bad faith, plainly Kerey Carpenter
did a job on them and convinced them this is the first one you need and the
Department of Elections already had their opinion ready.
P: Ultimately the canvassing board does get the two opinions. Obviously, Secretary
Harris says there can not be a recount unless there's a hurricane or malfunction
of the machinery. The Attorney General says that the count can proceed. Which
opinion takes precedence legally?
K: The Attorney General opinion is the opinion that they relied on. I think for two
reasons. One by this point everybody knew that the first opinion, the Secretary
Harris opinion, was a piece of garbage that was completely inconsistent with the
law. In fact, you give that opinion to a first-year law student and they would laugh
at it. [It had] no analysis, no nothing.
P: In that case, there would never be any recounts.
K: Right, there would never be any recounts. Clearly, the law wasn't intended to
prevent recounts from happening. The Attorney General, to his credit, did what
his office does, a thorough analysis of the law and the statute.
[End of side A2]
K: Side by side, there was absolutely no doubt which one is valid. Palm Beach
County canvassing board looked at it, they listened to fierce argument by the
Bush-Cheney people about precedents and the statutory provision, it's binding.
Fortunately the determination was made by the Palm Beach canvassing board
that it could proceed.
P: One of the issues that comes up very early, and I know that Kendall Coffey was
involved in this to some degree, was whether or not the butterfly ballot was
illegal. Did you argue that issue and did you think the butterfly ballot was illegal?
K: We wanted to include the butterfly ballot issue in the ultimate litigation. It's an
issue that I was not permitted to litigate on behalf of the Vice-President. It was
an issue that ended up being litigated by some private litigants with some great
help from my team in Palm Beach County. I think it was a serious mistake and
ultimately the [Florida] Supreme Court resolved that the butterfly ballot was not
clearly illegal. It was a big mistake to not get involved in the butterfly ballot. For
three reasons really, first, even thought the team said the issue is going to be
litigated anyway, that's not the same as the Vice-President of the United States,
the presidential candidate, weighing in. I will tell you that every move we made in
front of every court, and I'd even say the Tallahassee court, although the trial
judge was plainly ill-disposed toward our position.
P: Is this is Judge Terry Lewis [Leon County Circuit Court Judge, 1988-present] or
Judge Sanders Sauls [Judge, Leon County Circuit Court]?
K: Judge Sauls. Everywhere we went, when it was action being requested or a
position being advanced by Vice-President Gore, the presidential candidate, the
courts paid serious attention to it. I would say the degree of attention the courts
gave to private litigation, while courts do a good job generally, was not the same
degree. One, the absence of our presence from that litigation hurt the outcome.
Two, I think that the butterfly ballot was probably the easiest way to convince
somebody visually that there's a problem in Palm Beach County. You look at it
and even though academically you could stand back and say, of course we all
know what this is, when you look at it, it looks confusing. That would have been
the spur to have judges say, maybe we have to be really careful about how we
count the ballots because of this confusion.
P: In other words, it would serve as a motivation to recount.
K: Correct. And three, I thought the law was certainly in great dispute on whether
that ballot was valid. Now, the real problem there was, what's the remedy?
What would you do? Could you actually have a new election? And that brought
out a whole lot of other issues. I understand it, but it was a mistake not to have
it. Although it may not matter because we have electronic voting, I ultimately
think the Supreme Court decision approving that butterfly ballot was wrong. It
really was bad election law.
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]
would argue that the Democrats confused voter failure and machine failure and
that ninety-six percent of the people in Palm Beach County did vote correctly.
K: I don't know if ninety-six percent did vote correctly. I don't know how he would
know that or anybody would know that.
P: That figure comes from Theresa LePore.
K: I do know there were far more rejected or improper ballots in that election in
Palm Beach County than ever before. The voters didn't make up that ballot. The
Department of Elections did. It's not the voters' fault, it's the Department of
Elections's fault. That's why we have a law that says candidates are to be
included on the same page one after the other. Not [on] facing pages.
P: If it's voter error, those votes should not be counted.
K: I think that's an ultimate disagreement. Is it voter error? The voters didn't design
that ballot. The supervisor of elections did.
P: But everybody signed off on it. Democrats and Republicans.
K: Sure, and that may be a waiver issue. But if that ballot was wrong, it's not voter
error, it's the vote error. Vote error is what recounts and challenging elections
are all about. If for example, in a punch-card system, somebody set out to bend
one of the styluses that goes into the holes so that in bending it, it couldn't punch
through and it was determined that bending was done by the supervisor of
elections office, it would be voter error when the voter went through and tried to
punch and couldn't punch all the way through. That would be actionable
because it was an operation of law, a state action essentially, the action of the
government, that prevented that vote from being recorded as a valid vote. I think
the same argument could have been used very successfully in [the] Palm Beach
County butterfly ballot [issue], but the decision was made not to challenge that.
P: Why did the canvassing board in Palm Beach decide to suspend the recount,
although they never really got the recount started?
K: That came about because of the conflicting opinions with the Attorney General
and the supervisor and the Secretary of State on whether they could continue
with them or not. We fought bitterly about that. On day eight, the Attorney
General authorized the Palm Beach recount, the Secretary denied the Palm
Beach recount and Palm Beach suspended the recount saying there are
conflicting opinions. Ultimately, that process starts again two days later when the
Florida Supreme Court rejects Secretary Harris's view that you couldn't have any
recounts and Palm Beach County re-initiated the recount.
P: Did you go to Judge Jorge LaBarga [Judge, Palm Beach County Circuit Court]
initially to get the count restarted?
K: Yes. You put two judges together who are new judges. LaBarga was a relatively
new judge. Burton was a relatively new judge. Different experience, Burton was
a lower-level judge, a county judge. LaBarga was a circuit judge, judge of
general jurisdiction. The two could not have been any more different. LaBarga,
who was still a relatively new judge, came thoroughly prepared, read volumes of
material, became an expert in legal issues. Burton seemed to be one of these
nice guys in a position where he kind of just moves along without becoming
thoroughly knowledgeable about what he is doing. LaBarga treated this
incredibly well, expedited hearings, listening to the lawyers, I could not say
enough good things about him.
P: On November 9, and I don't know whether this was you or Kendall Coffey, but
you did send a letter to Secretary Harris asking her not to certify the results until
the manual recount was completed.
P: Did you get an answer back from her?
K: I did not. I don't think anybody did. It was one of those non-decisions that
helped delay this entire process. By then I think we all knew that she wasn't
acting as a government representative, she was acting as a Bush-Cheney
representative. That was done because we wanted to make sure that we set the
P: Once the counting begins again, the Palm Beach County canvassing board is
going to change the standard. Would you explain what process they went
through and what your view on all this was?
K: By the way, just so that you know and I know that you know, right around that
same time, that federal lawsuit had been initiated by Bush to stop any of these
P: This is Donald Middlebrooks [Judge, U.S. District Court].
K: Middlebrooks denies their request. Day nine is the day after Secretary Harris
says Palm Beach can't recount because it's not a hurricane, etc. The next day,
day nine, Bush appeals the federal court order to the Eleventh Circuit. They're
already working heavily on this federal litigation. That's the same day that the
Florida Supreme Court rejects Secretary Harris's request to stop the recount.
P: That's a very intriguing development. I've talked to Joe Klock a little about that
and I asked him why would Secretary Harris would file such an opinion or
request with the Florida Supreme Court. Does that seem strange to you?
K: I don't know what their decision making [process] was but it was obvious that
they were trying to do two things. They were trying to put any roadblock in the
way, believing that courts would need to take some time to decide, so I think it
was a delaying tactic. If the court took three, four, five, six days [or] a week to
decide, that moves them closer and closer toward what they want which is
getting the vote certified. Second, even though I truly believe that they must
have known the Florida Supreme Court was not going to be accepting of what
seemed to be the Bush [faction] politicking of this election; I think they wanted to
be able to run to the federal courts to say the Florida courts are not protecting
whatever it was that they were protecting. They thought early on if they got
something that didn't help them they'd be able to justify going into federal court
with more reckless abandon.
P: It just seemed strange to me that Katherine Harris, who is supposed to be an
unbiased cabinet member, would file the suit. If the Republican party had filed it,
that would have seemed to be a little more logical from my perspective.
K: We were never surprised by those kinds of moves because it was obvious. It
was in our view, the laying down of the gauntlet that these the Bush-Cheney
people were no longer hiding behind the campaign or hiding behind the
Republican party. They were making a full-frontal assault. Who better to initiate
it than a senior government official?
Palm Beach County gets the okay to do the recount. Then [there was] great
discussion over how we do the recount. After the canvassing board had great
success and no problems with their initial one percent recount with the standard
that seemed to be flexible, but also seemed to validate voter intent, there was an
effort to change the standard. The effort was a Republican-led effort, but
Theresa LePore, the supervisor of elections, again who institutionally doesn't
want a recount, tried to manipulate the standard to be changed to make it more
difficult to determine that vote should be counted.
P: Is this the 1990 standard?
K: Right. Going back to a standard they claim was the 1990 standard, which
essentially meant unless the hole-punch was enough to remove the chad or
come close to removing the chad from the card, it wouldn't count. That was a
complete turnaround from the standard they had used initially, which they had
used effectively and caused little disagreement among the canvassing board
members with the broader standard of voter intent. Burton chimed in with
LePore and they changed the standard to a very, I thought, improper standard
which led to the initiation of a lawsuit.
P: This was with Judge LaBarga under 166?
K: Correct, to get a declaratory action declaring the standard to be a standard of
voter intent. Judge LaBarga entered an order. The order was one of those
orders that could be cheered by both sides. Unfortunately, although I certainly
know from having handled that hearing that LaBarga was of the view that the
intractable wooden ruling advanced by Burton and LePore was illegal. Judge
LaBarga made that clear. You can't automatically exclude any vote because of
the appearance. You've got to look at each one to determine the intent of the
P: In effect, he just turned it back over to them.
K: He did, but he required them to evaluate each card, as opposed to simply saying
if it doesn't meet this formula, it doesn't count. The Republicans, the Bush-
Cheney people, used that to foster a view that it should be a restrictive
interpretation. We, in our effort to have all the voter intent counted, tried to
encourage the canvassing board to have use a broader, flexible standard to
validate as many votes as possible. The thinking being [that] you can't go wrong
if you validate a vote.
P: Regardless of who it's for.
K: Regardless of who it's for. Between the two sides, each side will get votes and
ultimately you have a much better idea of knowing who the victor is. That really
was our view. If there's a doubt, you doubt in favor of the voter.
P: Did you want Judge LaBarga to set his own standard?
K: We asked Judge LaBarga to define the standard of Florida law that we believed
had been set already. [It] hadn't been sufficiently articulated in a court decision,
but we asked the judge to define a standard that I and other lawyers in the
pleading had given him. [We outlined what we] believed] was the proper
demonstration of Florida law and the law that applied. There is some issue about
what Dade is doing, what Broward is doing, what Palm Beach County is doing.
Having a judicial decision saying what the law is would have been extremely
helpful, not only to guide the canvassing board, but it would have been extremely
helpful in perhaps convincing the United States Supreme Court that there was a
standard of Florida law that governed, a uniform standard.
P: No court would ever make that standard.
K: Right, that's correct.
P: Once [Palm Beach] began counting under the new standard, what are you doing
during this time? I know that there are observers and we get all of these outside
people. Governor Mark Racicot [Montana governor, 1993-2001] and Bob Dole
[unsuccessful Republican Presidential candidate, 1996; U.S. Senator from
Kansas, 1969-1996; unsuccessful candidate for Republican Presidential
nomination, 1988] and other individuals come. What's your strategy at this
K: A couple things. To bring back a point about being outflanked, this was an area
where the Bush-Cheney people were far better equipped. As recounts were
going on, they routinely had heavy-hitter prominent people appear as observers.
I tried, phone call after phone call, to persuade the decision makers to bring
down our people. To get Governor [Bob] Graham, Senator Graham [U.S.
Senator, 1987-present; Florida governor, 1979-1987] who is a former governor
and a well-respected guy to come on down. To get prominent Democratic
senators and other public officials to sit down in Palm Beach County. The
Republicans developed that to a science. Even getting their observers, their big-
time, big-name observers to be able to sit down with the canvassing board as an
observer. Even though I know the canvassing board claims they were doing just
the objective job, it certainly didn't hurt the Bush-Cheney people when they had
some big shot rubbing elbows with the canvassing board, watching what they
were doing. [It] got to the point that I had to challenge a couple of these people,
including the Governor [Racicot?] for sitting down there almost as though he
was a canvassing board member. I objected, saying, you allowed them to come
down as an observer to see what they're doing. That's five minutes or ten
minutes. They shouldn't be there for an hour. The canvassing board agreed that
was unfair and sent them packing. He was upset with me, told people that he
couldn't believe that I would have him thrown out. Basically, he took it personally
when in fact he wanted to be there to use his influence.
P: Carol Roberts said that they would come in and they would observe the process,
which was, according to her, fair. How could you cheat? There were observers
on every side. Then they would go out and say there are chads all over the floor,
it's chaos in there. They would say that publicly. How did you counter those
kinds of comments?
K: It was very hard because that was one of those areas [where] the group fell
down. The lawyers were doing a good job. We had some very good people
doing that. I would make constant comments to the press. Between getting face
time with a U.S. senator or a governor, and Ben Kuehne, prominent lawyer
though he may be, the governor gets face time. [If] I had a Bob Graham there or
a Secretary Rich, I would have gotten the same kind of quality time opposing it.
Somebody [to] say this is the process, this is what's very good. This shows what
Carol Roberts pointed out, it shows how certain people were willing to manipulate
the process. It was no longer a process of counting votes or not counting votes.
It was all a process of trying to make the other side, the Gore-Lieberman team,
look disreputable. The [Republicans] would literally be very impressed by
observing what went on and see that this was a very understandable process
and then [they would] run out to the media and totally lie [and] make things up
about what was going on. They knew that if their guy got elected, they would get
an appointment, they would get extra money, there would be something in it for
them. It was somewhat disillusioning to see that's what this had become. This
was only an issue of who can win, for one side, as opposed to what we thought
what was a real public policy issue of how we govern in the United States of
P: How would you characterize the three members of the canvassing board? The
general interpretation has been that Theresa LePore was in a state of shock, that
Carol Roberts was a partisan Democrat and that Burton tended to lean toward
the Bush people.
K: That's what people have said. There is no doubt that LePore was very
demoralized in this whole process and remained in shock. She was pushed
around a lot.
P: On one occasion she announced a yes vote and Bob Montgomery said, no
Theresa, you will vote no on whatever it was.
K: I do have a comment there, but let me just finish up this first thought. She
wanted to do anything she could to have this process not make her look even
more foolish than before. In that regard, [she] was very conservative. Burton, I
think, favored a more conservative approach. The approach was, unless you're
absolutely positive they voted for this person, count it as a non-vote. That's a
philosophy, it's maybe a conservative philosophy. I think it's the wrong
philosophy and it's not what a judge is supposed to do, but that's the view he
carried. I wouldn't call him partisan, it's not like he looked to do something that
would favor Bush. He looked to have votes not counted as often as possible.
P: He was very much against counting any dimples, right?
K: Absolutely. There was no dimple that he liked at all, even though some of them
you could clearly [tell], at least [from] my view as an advocate, [how] these
people intended to vote.
P: Would you try to argue that the pattern of votes could determine the vote?
K: We would argue patterns, we would argue machines. We know, in fact, that
some of the machines [were] extremely difficult to punch all the way through
because of the way they were aligned. All this came after the fact, but we had
raised challenges to the machines. In fact, we even brought in an expert who
talked about problems with [them]. [Burton] wasn't at all interested. We even
found one thing which was amazing. You would think that Burton would have
understood this. We found in a precinct, a number of ballots that had very similar
markings where in one particular place there was a little tear on a ballot and in
another place there were a considerable number of dimples on multiple ballots.
When the first one was brought to the attention of the canvassing board, Carol
Roberts thought this was something. Theresa LePore wanted to bury it as
quickly as she could and Burton said, oh, this is nothing.
P: They were misaligned, is that what the problem was?
K: It was the result of a misalignment. They count by precincts. Several more of
these same examples are showing up. We pointed out, since we kept records,
three ballots ago you saw the same thing. Burton was caustic in saying, oh no,
that's nothing, until it happened enough times that he couldn't ignore it. The
same markings on ballots apparently [were caused by] a machine at that precinct
that was misaligned and these ballots who knows how many there were were
just getting rejected out of hand, when in fact as Judge Posner [talks about]
machine error versus voter error, [this was] plainly machine error. Burton was
not interested in any machine error. Theresa LePore swore up and down that all
these machines were checked and rechecked, even though they apparently sat
in warehouses and nobody ever did anything until election day. Carol Roberts,
people say she is a partisan Democrat, she is a Democrat.
P: Well, they're all Democrats.
K: They're all Democrats, right. She was outspoken, she's an elected official. The
other two were not, by the way. No, Theresa LePore was an elected official
certainly, but she's an active elected official. Some people say she [Carol
Roberts?] favored the Democrats but her view was, when in doubt, it's a vote.
People said that was the Gore position. Yes, it was the Gore position, count all
the votes. There was no suggestion that Carol Roberts anytime looked at
something and said, hmm, that will favor Gore, I'm going to count that and looked
at the identical thing and said, hmm, that would favor Bush, I'm not going to
count that. No, her view was if it gives the appearance that a voter intended to
vote, I'm counting it as a vote. It cut both ways.
P: One of the problems is that, during the counting, they took a break for
Thanksgiving and, of course, did not finish on time. Judge Burton appealed to
Katherine Harris because the vote counts were completed two hours after the
deadline that had been set. She would not accept that late count. What was
your reaction to all of that maneuvering?
K: We didn't want a Thanksgiving delay. Broward County [people] and I [were]
active in a lot of that, we didn't want a Thanksgiving delay. Didn't think it was
necessary. Yes, they had a lot of volunteers, but they could have taken a little bit
of time off to have Thanksgiving. I had a Thanksgiving dinner with my family,
drove down to Miami and it was fun, but they all wanted to know what was going
on. We would have rather been counting the votes and we should have been
counting the votes. For whatever reason, they made that decision. It seemed
like even though it wasn't that way, it seemed like this was just another avenue of
delay. We knew that the county could be finished on time. It should have been
finished on time. We had forecast it being finished on time. That delay hurt the
process and as it turns out, it meant, according to Katherine Harris, which was
another bizarre decision that [it was] too late, this artificial deadline wasn't met,
[we] can't count them. Obviously, the Florida Supreme Court found that to be
another misuse of power. That was not surprising.
P: Ultimately in the Florida Supreme Court's second decision you find that there are
215 votes, but there was some argument that Gore only got 176. There was
some discrepancy in that final vote. What was all that about?
K: There was this tabulation process. After the canvassing board [made] their
decision, the result of the canvassing board would get tabulated and put on a
precinct form which would count the vote changes. Those sheets were changed.
Whereas the canvassing board found certain numbers to exist, some of those
sheets, when they were processed by Theresa LePore's office, had changed
P: You said they were changed?
K: They were changed. The numbers, as found by the canvassing board, were
changed when the supervisor of elections recorded them. This happened on a
number of occasions. Some were simply [added] up incorrectly, which is why we
would review them and make sure that the final documents were correct. In that
rush to get to the deadline, some of these sheets were mis-tabulated so that the
[sheets with the] preliminary numbers sent up, [which] I think were sent up
electronically to the Department of Elections, had the wrong information on them.
We went through all of those sheets to identify what the correct numbers were
and there was a discrepancy between which numbers were the official numbers.
That led to some concern as to which ones were the official numbers.
P: Which ones were, do you think?
K: The greater number was the official. 215 I think was the number. We had gone
through all the paperwork, but the certification papers, because they were
sending them up so quickly, were in error. Then after Katherine Harris said it's
too late to count anymore, the question came [up as to] which certified numbers
to use. Do you use the ones that stopped then or do you use the ones that came
two hours later? That was a major battle. You had mentioned something about
the lawyers and Bob Montgomery telling her something. Bruce Rogow was
Theresa LePore's legal lawyer, so to speak, to do the litigation. Bob
Montgomery, great lawyer, was more involved in sort of on-the-ground advice. I
[have] known Bruce Rogow for a long time. He's been a friend of mine,
confidante, my law partner is an associate professor at Nova law school and he
teaches with Bruce. There were times when Bruce's advice to Theresa LePore
was among the worst advice I could ever imagine. Not from a political point of
view, but from a lawyer point of view, that led me to believe that Bruce's real
interest in all of this was making sure he got to the U.S. Supreme Court.
Eventually he did get to the U.S. Supreme Court on this so maybe his thinking
was right, but he made some calls that were just outrageous, like the call for
suspending the vote in Palm Beach County.
P: He filed a suit in the Florida Supreme Court and almost every lawyer I've talked
to said that was just almost unthinkable because it did the one thing that
Democrats didn't want to do, which was waste more time.
K: From his point of view, wasted time was unnecessary, but from his point of view,
[and] I think sometimes the lawyers' personalities get involved in the process, he
knew that if he took the lead [in] getting to the Supreme Court on this issue, he'd
be able to be a player in any litigation, number one. And number two, maybe
even control a case that gets to the Supreme Court, because unlike some of us,
he truly believed that the United States Supreme Court would make the final
decision in this case. I can't say that I believed or didn't believe that. I was
convinced that the Florida Supreme Court would make the Florida law decision.
Then if there's any federal constitutional issues, the Feds would take care of it.
The Florida Supreme Court was the critical court to evaluate. Bruce Rogow,
thinking differently, knew he wanted to posture a case to the U.S. Supreme
Court, so he [gave] some of this advice to Theresa LePore, which was terrible
advice [and] poor lawyering, I thought. Ultimately it helped advance his
positioning for a case in the U.S. Supreme Court.
P: What was your role in regards to the Miami-Dade canvassing board? Could you
give me some specific detail on that?
K: Any time I wasn't spending in Palm Beach County coordinating this, I would
spend in Miami-Dade County working with teams of lawyers. I brought down one
lawyer who actually went to law school, went to college with my daughter, who
had been a federal judge's law clerk. [I] brought him down from New York to be a
junior lawyer on the case and had him situated doing legal research and writing.
I would spend lot of time in Miami whether on the phone or down here doing work
and monitoring what was going on with the canvassing board. [I was] helping
arguments with the canvassing board. One thing that we haven't talked about
and maybe you talked about [this] with Steve or with Kendall, very early in the
process, we had a Sunday morning telephone hearing with Judge Margarita
Esquiroz [Miami-Dade Circuit Court] over an issue dealing with [the] canvassing
board and it was kind of fun because it was the Dade County group of Gore
lawyers, team recount lawyers, and the Bush lawyers getting involved in things.
P: That was the Third District Court of Appeals, right?
K: That ultimately went to the Third District Court of Appeals. It was initially at the
circuit court level with the Bush people trying to stop [the count].
P: This is an injunction to stop the count.
K: Right, the injunction to stop the count and this [was a] Sunday morning hearing
because Judge Margarita Esquiroz had been out of town for the weekend.
P: So Judge Tobin eventually heard the case.
K: He did eventually hear it. She gave us an emergency hearing but then Tobin
handled it because there were some issues over her sitting.
P: Steve Zack [attorney for Al Gore in 2000 election] said that it demonstrated the
extraordinary difficulty for lawyers and judges. It took something like six hours to
prepare a brief. The judges are going to have to hear it and make an immediate
K: That was difficult. I will tell you that those of us who have been through these
kind of election battles have developed expedited litigation to a science. It's not
unusual now to get a decision and have to file a merits brief in twenty-four hours.
For a lot of the lawyers, it was a new thing and for the lawyers who wanted to
delay on the Bush side, that was one of their constant complaints. When we
were doing the Tallahassee litigation before Judge Sauls during one of the
hearings, Joe Klock I want to say first that I know Joe Klock, I like him, I've
done a lot of work with him, but he had a client to represent made a flat-out
misrepresentation to Judge Sauls saying, I have to do this matter and that
matter, I'm only one lawyer, I can't be in both places. The judge says, well,
you've got a firm. He says, judge, this is my matter, I don't have a whole lot of
lawyers in the firm handling this. [He said] something like that. It turns out when
he bills the Secretary of State, thirty lawyers in his law firm are billing. In an effort
to again delay the process by saying judge, I can't be here for this hearing, he
made that misrepresentation to the court, which I thought was inexcusable, but I
understand what he wanted to do. Anyway, back to Miami-Dade County. I am
not there when the counting stops.
P: In the first one-percent count, the original motion to count those three districts,
two were black and Hispanic, one was Jewish, was made by Joe Geller, so it
didn't come from the Gore people per se.
K: Joe Geller made that motion on the Democratic Party side.
P: In that recount, Gore gained six votes. So now the argument is whether that is
enough to constitute a recount. Kendall Coffey, and I guess you as well, were
arguing that if you extrapolate this, there should be a lot more because there are
10,750 under-votes and there are bound to be a lot of extra votes in there.
K: A whole analysis was put together, not only legally but factually, on how you can
extrapolate those six to a requirement for a recount. We have to show cause for
the canvassing board.
P: The board voted 2-1 not to have the recount.
K: The board voted [to have] no recount, which was the biggest shock. We knew
that we thought the board would evaluate matters on the merits but really didn't
think that there was any likelihood that the Miami-Dade County canvassing board
would not vote to approve a recount. That decision came and that was an
incredibly bad decision which caused me and the other senior lawyers to really
beef up some arguments to come up with the arguments [as to] why that decision
should be overturned. Then [we had to figure out] how [to] get that decision
overturned. What do you do? Can you get a rehearing? Do you go to court?
What do you do?
P: You finally got a rehearing.
K: We did get a rehearing and one judge, one canvassing board member changed
P: This is Myriam Lehr [judge, Miami-Dade County; member, Miami-Dade County
K: Myriam Lehr, the judge, changed her mind. We had either the fortune or the
misfortune of having two judges on that panel. I think she changed her mind
because there was so much concern that votes weren't counted and [because of]
perceived problems around the state that a recount just had to be done.
P: Volusia County finishes their count and Gore got ninety-eight votes in Volusia,
which would certainly spur the Gore legal team on.
K: It helps change the view because part of our process was to explain [that] you're
not just looking at Dade County because this is a statewide election, it's really a
national election. If the numbers are starting to change elsewhere, just a few
votes would change the outcome of this election.
P: Even six votes might change the outcome.
K: Even six might. So there was that reality we're not talking about six votes or two
hundred votes or one hundred votes, we're talking about just a few votes. One of
the things I give great credit to my friends in Volusia County [is] that recount
happened quickly with no fuss or muss.
P: There were no problems.
K: No problems, everybody got along. They understood what they had to do, they
did it. That to me is what spurred the Republicans, Bush-Cheney, to realize, oh
my God, we have got to throw up every roadblock. We've got to make this look
like a disaster area. We've got to get riots in the streets if we have to. Volusia
happened, as we call it, under the radar screen. It was done, it was civil, it was
pleasant and when that recount was done, people in Volusia County felt [that
they] knew [their] votes were counted. Whatever way they went, we know our
votes were counted. The other three counties did not benefit from that because
the Republicans, the Bush-Cheney people realized, we can't have this happen in
a civil manner. We have to make it look like this is armed revolution.
P: It's interesting to note, had Dade and Palm Beach immediately decided to go to
recounts instead of dithering about with opinions, [since] they started four or five
days later, all of that could have ended up like Volusia.
K: That's right, it would have all been a much orderly process. Why? Because the
stormtroopers, as we'll call them, the people bused in, [were] flown in to create
problems. Whether they were young Republicans or whatever. The group of
people who ended up rioting in Dade County and causing problems took awhile
to get in place. That slowed down the process as well.
P: Ricardo Martinez, who is the Republican attorney, argued that in Broward v.
Hogan the canvassing board in Broward had turned down a request for a re-vote.
Clearly, the canvassing board has the right to do so. How did you persuade
them to change their minds?
K: The reality that six votes could make a serious difference. While the canvassing
board had discretion to do what it wanted, its discretion had to be weighed,
exercised in favor of the voter's intent. There seemed to be a lot of question
about the voter's intent.
P: This is according to the Republicans. The Democratic argument had little legal
basis, it was done primarily on the basis of emotion.
K: We think it was all [on a] legal basis. We tried to present this on the basis of
legal issues. If the canvassing board looked at it legally, they would realize that a
recount is in order. The example we would use is if you have a city commission
race and the city commission race is decided by a few votes to go one way or the
other, you wouldn't think twice about having a recount because it's manageable.
The argument that was really made to initially persuade the canvassing board not
to recount is how you [could] recount these hundreds of thousands of votes. It's
impossible to do. You can't do this. We'll never be able to get it done. That was
the emotion that was being played on it. If they looked at it strictly as a legal
matter, routine matter, [there] would have been no debate that we'd do a recount.
[End of side B1]
P: Let's go through the process when the Miami-Dade Canvassing Board start
recounting. As I recall, Gore had gained about forty-six votes when the
canvassing board once again decided to stop the recount. Why do you think
they did that, and particularly elections supervisor David Leahy [supervisor of
elections, Miami-Dade County; member, Miami-Dade County canvassing board]?
As you indicated earlier, elections supervisors don't like recounts. He seemed to
be pretty adamant about stopping the recount, but said he was never intimidated.
K: He was adamant. We'll never know the psyche behind intimidation but the
stopping of that vote, the recount, was sort of the shot heard 'round the world. It
was so dramatic that all of a sudden it was done. It appears that Leahy, who is
the expert, was able to persuade the group that it just could not be done. Since it
could not be done, why do it? Apparently that was sufficiently convincing to the
canvassing board. The idea of why [they should] do this if it's going to be futile.
There's no way I can imagine somebody saying it can't be done. If more
resources were needed, bring in more resources. I'm convinced that the go-
ahead to stop came ultimately from his boss, the mayor's office, making it clear
that if you want this vote to stop, we're not going to stand in the way.
P: I know one of the lawyers, I think it was Jack Young [attorney for Al Gore in 2000
election], one of the Democratic lawyers, argued to count the under-votes. Why
didn't they do that? They certainly would have had time to do that.
K: [They] would have had time to do that. That was Young who had great
experience. They weren't willing to listen at this stage. If a count is going to be
made, Leahy's view was [that] we have to do a full count and doing a partial
count is not going to do it.
P: I notice that when the Miami-Dade ballots were eventually taken to Judge Lewis,
they counted all the ballots in six hours.
K: That was Jack Young, from Washington who is actually partners now with the
general counsel for the DNC [Democratic National Committee], Joe Sandier.
P: How important was the mob, as it is portrayed, moving up to the nineteenth floor
while they were trying to count? The crowd wouldn't let anybody in. Joe Geller
apparently came up and got off the elevator and they pounced on him.
K: They physically attacked him. I think that was very important. That was probably
the biggest black eye on the Miami-Dade County elections department. David
Leahy has been elections supervisor for a lot of years. I've had a close and good
working relationship with him [and I] like him, but he is incredibly protective of the
image of elections in Dade County. [From] the media, [it] appeared that Miami
was in disarray. It was a calamity going on down there. Nobody knew who was
where, which hand was on which side. It was a disaster. That personally hurt
the view of those people who had an institutional loyalty to the system, saying my
God, look at the way we're being characterized. Remember, this is after the
Elian Gonzalez debacle where the world thought Miami was just a different place,
not anything like the United States. Now this comes on top of it and there's an
institutional view that we can't have this image continue in the public's eye. I
think that helped persuade David Leahy, and ultimately the canvassing board,
that stopping it would do far less harm than allowing it to continue. That was
essentially a theme of the mob, the Republican-led mob. [They were] people
who basically were brought down here to do mischief and damage. In fact, when
we had the litigation, we even had some pictures of the mob and some of the
people who were leaders in that group are people who have had problems in
election matters in other places. It may just be coincidence, it may also be that
they are brought in to cause problems.
P: I notice there were a lot of AAs [administrative assistants] and LAs [legislative
assistants] of congressman and people from Washington who had some
affiliation with either Republicans in Congress or the Republican party who were
K: Right. [They] claimed that they were doing this all on volunteer time. My guess
is there was compensation for them as well. This was an official effort.
P: Justice Gerald Kogan [Florida Supreme Court justice, 1987-1998, chief justice,
1996-1998] had an interesting comment. He said he thought the chaos in Miami
was significant because he thought it might have persuaded the United States
Supreme Court justices that there was in fact a crisis in America. We don't know
how it impacted them.
K: We clearly don't know, but undoubtedly the most chaotic element was in Miami-
Dade County, which was not due to the lawyers necessarily, but the way things
happened. That gave a picture of uncertainty with regard to the transition of
power. I'll tell this story which is a little bit off point. I spent considerable time in
West Africa in my last year of college doing some grant work and research work
and [gave] lectures to some university students in West Africa, Nigeria and
Ghana. My last year of college was 1974, which also happened to be the year of
Watergate and the resignation. I would have debates with politically active
students about what was going to happen in America as they [heard] about
President [Richard M.] Nixon [U.S. President, 1969-1974] being under fire. Their
view, almost unanimous, was [that] if things get tough, President Nixon will seize
control of the military and force the hand. The most powerful leader in the world
could not be forced out of office or have a problem just because the public is
clamoring. I would explain to them about our constitutional system of
government [and how] that could never happen. They were more familiar with
the military taking over whenever a problem happens. I use that example in
explaining when I lecture on this, explaining the potential perception of what was
going on in Miami. If it looked like this was an incredibly disorderly process of
transition, people were going to get alarmed. Did it have the effect of alarming
the United States Supreme Court? I don't know, but it certainly gave the
impression to many people around the world that there was some problem in
America, unlike Palm Beach County, which while vigorous, was professional.
Broward County, while vigorous, was professional. Miami seemed like it was a
lot more chaotic.
P: Let me follow the federal court process. Judge Don Middlebrooks argues that,
first of all, it was a state issue. Another point that he makes that I thought was
interesting, was that of course there are different standards. There always have
been different standards. There are sixty-seven counties, this is the way the
system works. The Republican appeal to the Eleventh Circuit Court of Appeal,
which as you know is a conservative court, was also turned down. In other
words, at this level, we see no federal issues. Did you see federal issues at this
K: No, I believe the federal issues were always red herrings. This was not a federal
matter. I thoroughly litigated all these issues. This was not, nor should it ever
have been, a federal matter, at least with regard to the issues that were being
decided. We researched state law, this wasn't an issue of depriving people of
the right to vote. In fact, if you wanted to make a federal issue out of it, which we
didn't see the need and didn't think it was there, there was an active effort to
prevent voters from voting or having their votes counted. If anything, there
should have been an effort to [determine why] one side doesn't want certain
people's votes to be counted. It was a vote-counting issue.
P: Therefore it is a state issue.
K: Therefore [it is] a state issue. Truly, under the case law of the United States
Supreme Court, the case law of Florida courts and other courts around the
country, [elections are] state issues. That's what the Congress says, that's why
we don't have a national election that is run by the United States Department of
Elections. We have state elections which lead to the electing of electors who
then meet and that's really the only national election we have in our constitutional
P: The statute 3 U.S. 5 that says you can't change the rules.
K: You can't change the rules. The only national election that we have is the
electoral college. That's the only thing that's decided nationally. All the rest are
P: Although Barry Richard [attorney for George W. Bush in 2000 election] in his
brief to Middlebrooks brought up the Fourteenth Amendment and we don't see
that again for awhile.
K: Do not see it for awhile. Certainly, they were pulling out all the stops to come up
with something to give a federal court some reason to get involved in it. We were
blessed with a tremendous lawyer whose name slips my mind who helped brief
the Eleventh Circuit case. We had Professor [Laurence] Tribe [legal scholar;
author; attorney for Al Gore in 2000 election], who was a real hoot to work with. I
don't know if you will interview him or have a change to interview him. We were
sitting around the table in Mitch Berger's [attorney for Al Gore in 2000 election]
Miami office working on the briefs. Kendall Coffey, myself, Joe Geller, Larry
Tribe, others [were] literally taking pieces of the brief, working on it, drafting,
hashing it out. It was fascinating to work with Tribe, who is brilliant. I don't know
if you're familiar with this raging debate in legal circles over the use of footnotes.
There are some judges and professors who say abandon footnotes. Others say
no, footnotes are very good. Tribe is one of these guys who believe that
footnotes serve an important part. He's working on an introduction in this brief
because he knows that the opening paragraphs of the brief are very important.
[We] had some language. We're talking about [whether] we should include it [or]
not. If you ever get a copy of the Eleventh Circuit brief you need to look at it.
The opening page starts and then page two of the opening brief has one line of
text and the rest of it is footnotes. It was just incredible to see that but we kind of
joked from the practical side of lawyers versus the academic side. We put a lot
into those briefs. We were successful.
P: Let me ask you about the Florida Supreme Court. I look at these as Lewis 1,
Lewis 2, Supreme Court 1, Supreme Court 2, although as you know the Supreme
Court made a lot of decisions. One of the more important ones was made on
November 16, a 7-0 decision that Palm Beach and Broward County may
continue the hand recount but the Court left it up to Judge Lewis to determine
whether or not Harris had to include those votes. Then they came up with this
deadline of November 26. Where did that come from?
K: That came from a misinterpretation of the statutory requirements.
Misinterpretation was assisted by our side. The deadline was and should always
have been the day the electoral college convenes. Any decision prior to that time
is a timely decision. I know there are some legal issues that other people are
talking about, but that always should have been the deadline.
P: You're talking about the safe harbor provision now? December 12 or December
K: Correct, but under the constitutional system and the statutory system, the day the
electoral college convenes is the day that you have to know who the electors are.
That's the ultimate deadline. Is there a Dec 12 [or] a Dec 18 date that is
binding? No, it wouldn't matter. It does allow that process to be assisted by
others, say for example, the state legislature, but it's not an immutable deadline.
This Sunday after Thanksgiving deadline, the 26th, is just extending the
P: The way they put it is that it had to be in by Sunday at 5:00, if Harris had her
office open, or Monday morning.
K: Right. That was really a misinterpretation of the statutory scheme which we did
not do a good enough job of educating the Supreme Court about that.
P: Once you see that, do you now fear you have a federal issue because, according
to the Bush lawyers, they are changing the law?
K: No. There never was a changing of the law from our perspective because the
law always was there is this process which allows an election recount to take
place and allows a protest and a contest. That's the law that hasn't changed.
The decision when certification happens was always dependent on whether there
was a protest so there never was a firm deadline for when that certification has to
take place because a protest is always going to affect that deadline. We didn't
view this as ever changing the rules of the game. The only changing rules of the
game would be if you didn't allow the protest and recount to take place.
P: In Florida law, I think it's 111 and 112. One says that the returns "must be"
included, then 112 says "may be" included. I asked David Cardwell about that
and he said the "may be" included phrase was put in there because, in many
cases, if you take [the example of] Joe Carollo's disputed election, you can't
count [the votes] in seven days. So that deadline has to be flexible. If there's a
disputed vote and a recount, you can't possibly get it done in that time.
K: You may not be able to get it done. The wisdom of that provision recognized
that. In a little city commission election where you've got 500 people voting it
takes an afternoon. When you have 100,000 votes or 500,000 votes or
1,000,000 votes, the scheme recognizes [that] it takes time [and] labor to do that,
which is why the deadline depended on recounts.
P: You feel like you didn't do a good enough job persuading the Supreme Court to
be fairly specific about that?
P: Did you want them at any point to set a standard?
K: Yes, a standard from the Supreme Court would have been ideal. A standard
from the Third District Court of Appeal would have been ideal. A standard from a
Fourth District Court of Appeal would have been ideal. Florida, we thought, had
sufficient law that made clear that voter intent was the standard. As was
ultimately determined, how to get to that standard is the difficult part. The
analogy we used is, the law says reasonable doubt is what juries decide. That's
the standard. But each jury is going to decide reasonable doubt for themselves.
That doesn't mean that the standard is artificial and capricious and we know the
standard is not formulaic because we've seen cases and there have been
professors study them.
P: Such as in death penalty cases.
K: Death penalty cases, where one jury hears the entire case, comes up with a
recommendation. That case gets reversed. Another jury [hears] the same thing,
[hears the] same evidence, same facts, [yet] comes up with a different
recommendation. The standard is the same, but how the people apply that
standard is necessarily going to depend on the people.
P: In fact, that's what David Boies was arguing.
K: That's what David Boies was arguing and arguing very effectively. Otherwise we
would say that a machine vote is all that can ever happen. One of the things
David Boies was very good at noting [is that] a machine vote is only as good as
how you program the machine. What if the machines are different? What if
they're manufactured by a different company? The chad build-up? That doesn't
mean your machine vote is any better than a hand vote. While the standard is
the same, the machines go through and they read the light and they come up
with [results]. Depending on how it's applied, you may have different results.
That had been our view all along: that we all agree with the standard. The
standard is, did the voter intend to vote? How do you know that? Well, only the
voter really knows that. You have to look at the actual vote to make that
determination. We thought, given this litigation, it would have been helpful if the
Florida Supreme Court had said this is how intent of the voter is applied in our
communities. The reason that would be difficult is [that] we have different types
of balloting. For example, how you implement intent of the voter with punch
cards is going to be different [from] how you implement intent of the voter if you
just have a paper ballot or optical scanner. No matter how you cut it, if the idea
is [that] the standard has to be identical for every single ballot, if that's the
standard, every election in the United States of America is unconstitutional and
clearly that's not the case.
P: Several optical scan counties turned off the little device that would flip back an
over-vote. They turned it off, they didn't use it.
K: That came out only later. All of a sudden you see that and first of all it brings up
a [question as to the] reason, why wouldn't you? Why would you have it and not
use it and number two, once you know these things are going on, why wouldn't
you embrace a hand count of everything just to make sure you have it right in
such a close election. Third, the nature of the election system allows election
officials to oversee the election process. That's the nature of what we do for our
democracy which is why we have local elections and canvassing boards.
P: That's their job. David Boies said it was really kind of a catch-22. If the Florida
Supreme Court had come up with a standard, the United States Supreme Court
would say, they're clearly making law. If they don't come up with a standard,
they violate the Fourteenth Amendment. So either way, there was a problem.
K: From my point of view, knowing that the U.S. Supreme Court was only result-
oriented in this they knew the outcome and they were going to get there one
way [or another] it would not have mattered what the Florida Supreme Court
did because the U.S. Supreme Court is not engaging in real decision-making.
Certainly, had the Florida Supreme Court made clear what the standard had
always been in Florida, we could have overcome that changing-the-law aspect.
P: Tell me exactly what your participation was in the case in Judge Sanders Sauls
K: [I was involved in] two aspects. I was one of the trial lawyers in the case,
although ultimately I did not handle any witnesses because of our decision to
abbreviate the presentation [and] make it very, very narrow. [I] was active co-
counsel in the case, in the courtroom all the time and was also one of the
principal lawyers drafting the complaint and marshaling the evidence. We,
Kendall Coffey and I, drove up to Tallahassee that Sunday, November 26, which
was the certification deadline, when it became apparent that all the counting that
was going to get done was done. We jumped in the car and drove up to
P: At this point, you're in the contest phase, is that correct?
K: Correct. That becomes the contest phase and we travel to Tallahassee and we
file the election contest the next day, Monday the 27th, not wasting any time. We
got there late at night, met at the law firm that was initially our law firm and
worked for lots of hours drafting and redrafting a complaint, which we had been
working on before in between all this other stuff. We had been working on pieces
of the picture, what issues. Ultimately we had to decide that night what issues
were going to be the part of the challenge [and] what we were going to do. David
Boies had become involved in the case by this time, was tremendous, but it was
my first opportunity to work directly with him. [I] had phone calls before and had
been sending up drafts of e-mail segments or faxed segments of the different
briefs as well as summaries of what we had done in Palm Beach County since I
was principally responsible for that. [Those were] summaries of what we had
done in Dade and Broward County, what the facts and the evidence were. It
became the job of the lawyers to do the final version of what the lawsuit was
going to be like. Kendall and I were heavily involved in drafting along with John
Newton [attorney for Al Gore in 2000 election] and David Boies and a bunch of
other people, Mitch Berger. Steve Zack was not with us initially, we brought him
up a little bit later.
There are two decisions made that I think are important, one kind of funny. This
lawsuit was going to be somebody versus somebody. My position was this
should be Gore versus Bush, very clear and the reason is history will know what I
articulated. Whoever won Gore versus Bush, wins the election. A decision was
ultimately made to make it not against Bush, [but] against Harris, to make it Gore
against Harris. I'm big on images and how things resonate and I thought Gore
versus Harris, big deal. The ultimate decision was [that] this is [involves] the
Florida Secretary of State, it doesn't involve the other side, even though plainly
they are the other side. I don't know that [it] was a monumental mistake, but I
thought it was a big mistake. We're just fighting against Katherine Harris, but you
notice the decision that ultimately decided the election was Bush versus Gore.
Bush brought it against Gore. Not that cosmic significance would have mattered
a lot, but that was one decision that went against me and I thought that should
have gone my way in the discussion. The other was, what do we include in the
lawsuit? Do we include butterfly ballot issues? Do we include some of these
other issues? Ultimately, we kept it very narrow, [focused] on counting votes that
had not been counted, [a] very narrow focus for the charge.
P: You brought in experts about rubber in the machines, chad build-up, all that sort
K: Doing that part. That's what the lawsuit became. We thought [this] for a couple
reasons. Ultimately the decision was [that] we can get our hands around it, we
could, in very short order, have our proof ready and get to trial knowing that the
trial wouldn't really matter. It was ultimately going to be a Florida Supreme Court
decision, so we needed to get this process along. [We thought], I think
incorrectly, that we had a December 12 deadline to get all this stuff done. We
had a chart that we put up in the law office of all the days and what we needed to
do, when we needed to do it, a timeline we gave the judge the next day [showing]
what we thought would be an appropriate timeline.
P: In fact, you asked for an expedited trial calendar.
K: Absolutely, we asked for [an] expedited [calendar] and we would have been
ready to start the trial that afternoon if the judge had been willing to allow us to do
that. We wanted to get in before the judge and obviously we didn't know until we
filed the lawsuit, who the judge was going to be. I can tell you that there was
considerable disappointment because Judge Sauls was not known as, or did not
have a reputation as being, a particularly good judge. Not that he was going to
lean one side or the other, just wasn't a judge who inspired confidence.
P: Dexter Douglass said there was some talk about having him recused.
K: Oh, there was considerable talk. We had an absolutely positive, guaranteed
required-as-a-matter-of-law recusal basis.
P: It's fairly easy to do that, is it not?
K: It is and that's another issue that in retrospect was a mistake. One of the other
issues discussed among the lawyers in filing this lawsuit was the naming of the
parties, who are going to be the parties, should it just be Gore-Lieberman or
should we have the chairman of the Democratic Party? Should we have citizens
as well, because a contest can be filed by a voter, can be filed by the candidate,
[or] can be filed by a political party. There was some considerable dispute about
that, especially since we had made some decisions earlier that Gore-Lieberman
wouldn't get involved in certain litigation like the Palm Beach butterfly ballot, but
we certainly would provide help and assistance to those people and there were
reasons to do that. The decision made, I think, was a fatefully wrong decision
but it was made to just have the candidates [listed as parties].
Let me tell you the basis for the recusal. John Newton who was one of our core
lawyers had run the campaign for the candidate who ran against Judge Sauls
and that was apparently not a particularly friendly process. Judge Sauls would
have been obligated to recuse himself. But in order to do that, the motion to
recuse has to be filed and sworn by the client, by the party. That meant the Vice-
President of the United States would be filing an affidavit saying, I don't believe
the state judge can be fair. Later it turns out that didn't matter. The Bush team
was moving to recuse everybody every time they got the inkling there was going
to be a bad decision.
P: They tried to get rid of Nikki Clark [judge, Leon County Circuit Court].
K: You name it.
P: It also looks a little like judge-shopping too.
K: It does, and our client, Al Gore, was a very involved client, very concerned of that
because he knew the position we were advocating, count all the votes, was the
right position. It was a position you could tell America. That's what it's all about,
we want your vote to count. He didn't want the public to think he was
P: Some people criticize Gore for being too political and that Jim Baker had his eye
on the prize. Maybe if Gore had been a little tougher, he could have won. For
example, just theorize, what if you had gotten Sauls recused and Terry Lewis
had been the judge?
K: We don't know. I was a firm believer that we had to get rid of Sauls. I didn't
know him. I heard a lot about his background. I didn't know he was going to be
as pointedly partisan against us as he was. Just from his background, this is not
a judge you want handling the most important case in the modern history of
America. For example, had Bob Poe been the chairman of the Democratic Party,
we would have had a recusal in five minutes. Why? Because Bob Poe wouldn't
have had any compulsion to file an affidavit saying this judge needs to be off the
case because co-counsel in the case ran the campaign of [his] opponent and it's
certainly going to [have] an appearance of impropriety. If a Judge Nikki Clark or
a Judge Lewis or some special judge were brought in, first of all we know we
sure would have had a more expedited trial than we had. Two, we probably
know that the judge would have looked at the ballots, unlike this judge who [had]
all these ballots sitting in there. First of all, getting him to enter the order to bring
up the ballots was tough enough, then [he was] not even allowing the ballots to
come in, to have somebody look at them. The Florida Supreme Court said [that]
P: Of course the Republicans initially wanted all the ballots brought up. I've talked
to them and they said it would take a long time to get them all here. I think they
understood at that point that Sauls wasn't going to count them. I think they had
already figured that out. Steve Zack said that presenting all these experts really
cost some time. The Gore attorneys figured they were going to lose anyway,
maybe they should have just taken it to the next stage right away.
K: We had this timeline and the lawyers figure we're dedicating twenty-four hours a
day, we know what resources are available. We didn't really care what the other
side had to do, but we knew that they'd match us step for step. We needed to
get the judge to agree on a very expedited schedule. We also knew that the
other side was going to drag their feet. It turns out that Judge Sanders was a big
believer in dragging your feet on this, at least we thought. Once it became
apparent that we were not going to move with the speed we thought was needed,
the lawyers made the decision to streamline our case, to have the narrowest of
presentation we possibly could, knowing that all we had to do was get in the
record enough to support our position and we'll leave it up to the Florida
Supreme Court to analyze it. We thought, even though obviously lawyers are
always hopeful, that the writing was on the wall with Judge Sauls, that he was
going to rule against our position. We didn't know why. It turns out that his
reasoning was not particularly lucid.
P: I want to get you to comment on that. He said that the canvassing boards had
clearly not violated their discretion. What did you think of his ruling overall, in
K: One would expect in a case of this kind of significance, for a judge to take some
time and to analyze the law in a thoughtful way, hopefully a persuasive way. His
decision was reminiscent of a motion calendar where lawyers come in and for
five minutes they argue something and the judge gives an off-the-cuff ruling
based on the fact that the judge has heard similar arguments before. That was
the level of attention Judge Sauls gave this case. [He was] saying that the
canvassing boards didn't abuse their discretion in a very conclusory manner.
[His] not addressing the principal issues, which were right for him, made us think
that he was sufficiently result-oriented and he wanted to try to insulate his
decision from critical examination. If you don't say much, people can't criticize
P: He argued that it didn't meet the standard of probability in changing the vote. Of
course, David Boies argued, how would you know? You didn't look at any of the
K: That kind of helped us, and obviously the Florida Supreme Court made clear,
that how could you say there's no probability when the ballots are sitting there
and you know some other counties have seen that there are a number of these
problems. How could that not affect the probability outcome of the case?
P: Comment on the Florida Supreme Court 4-3 decision. First of all, were you
surprised that it was that close? That was the order to Judge Lewis to hand
tabulate these 9,000 ballots in Miami-Dade County, to give 168 from Miami, 215
from Palm Beach County and to count all the under-votes in the state. I guess
they chose under-votes because of time, rather than count all the votes.
K: Right, but they did give Terry Lewis the opportunity to have the over-votes
counted as well. The judge could have authorized that and in fact it turns out that
there have been, as you have probably seen, some articles written that have
made clear that Lewis's intention was to have all of them counted. Over[-votes],
under[-votes], you name it.
P: He could do this under the contest rules.
K: Under the contest rules, he had the ability and the Supreme Court certainly gave
him that authority. I like the Supreme Court not just because of this decision.
I've liked them for a lot of years. It's a good court, good people. I deal with them
very regularly. The judicial attention the court gave to this case has got to foster
great confidence in the ability of our judiciary. I happen to think that the unique
mechanism, which is not unique to Floridians, but I think [is] to most of the
country, to see the Florida Supreme Court at work, live on television, was
incredible. That, I think, embarrassed the U.S. Supreme Court enough to have
that case at least orally presented over audio. The [Florida?] Supreme Court,
you could tell from the questions they asked, was interested in the issues. There
was not a partisan bone in their bodies or in their minds, [not a] partisan neuron
in their minds when they were deciding this case. Their questions were all
focused on either legal issues or practical issues. They had both concerns.
What does the law require us to do and practically speaking what would that
mean to this election and other elections if we do it? The decision, I thought it
was really going to be 5-2 not 4-3, [from] the way the arguments went.
P: Leander Shaw [Florida Supreme Court justice, 1983-present; Chief Justice,
1990-1992] was the swing vote.
K: The swing vote, right. I was kind of surprised on that, but be that as it may, it
was interesting that the roles of the justices on the minority side tended to come,
at least the way I would rationalize it, in the context of the operation of the court
system. They've run the court system, they see what happens. Curiously, those
were the judges who joined on the minority side. I think [it was] for institutional
policy reasons more so than the strict legal issues involved in the case. I was
just surprised to see Shaw in there.
P: Charlie Wells [chief justice, Florida Supreme Court, 1994-present] had a very
K: Wells had a very vigorous dissent. No doubt that he did not like the direction the
court was going. I think part of the process was knowing that the court's
involvement in this case would result in the kind of legislative manipulation of the
courts that we've seen far too often.
P: One of the issues they bring up in their decision is that suffrage is a preeminent
right and that you can't have any restraints on suffrage. There were votes that
hadn't been counted yet. Is this a statutory decision or a constitutional decision?
K: Ultimately, we only know what the United States Supreme Court says about all of
this. The Florida Supreme Court made clear that they were simply interpreting
the Florida statute. They made it clear, their next decision made that clear. I
don't know who is going to write the book from the Florida Supreme Court, but
I'm sure when they write it the decision is going to be that they were shocked that
the U.S. Supreme Court claims they decided something that they didn't decide.
P: The United States Supreme Court gets the case after the case is remanded back
to the Florida Supreme Court, and one of the problems is, as Sandra Day
O'Connor [U.S. Supreme Court justice, 1981-present] claims, they never really
explained that November 26 date. She claims they never really justified their
K: I know. I guess that's the ultimate ability of the United States Supreme Court, to
not be satisfied with anybody or anything. I know that courts oftentimes make
decisions and law professors, and litigants, and lawyers argue for years,
generations, over what that means and what they should have done. Instead, I
think that if the United States Supreme Court had wanted to take the Florida
Supreme Court at face value but was concerned about an issue or two, they
would have directed a specific question to the Florida Supreme Court to say,
explain this, that, or the other thing, not wanting to decide the case themselves. I
think from Justice O'Connor's point of view, it was really a decision-made effort to
justify why they couldn't rely on the Florida Supreme Court. If they really wanted
to abide by the Florida Supreme Court, if they wanted to give credit for that, they
could have simply asked a question. Did the Supreme Court explain those
matters well enough? I think so and I think they did it under strict statutory
P: There are two things we haven't really talked about that I think are rather
significant. One is the military vote. As you know of course, a ballot has to be in
by the end date of the election. It has to be properly signed. It has to have the
post office mark, APO [Army Post Office], whatever it might be. By looking rather
carefully at some of these votes, it's very clear that the Republican party got
some of these overseas ballots recounted that had not been counted the first
time in counties that are heavily military. There were specific examples of lack of
signature, some were sent days after the election. In other words, on almost any
hyper-technical standard, these were invalid votes and the number, depending
on who you believe, is over 600, which is enough to change the outcome of the
K: [It is enough to] change the outcome of the election. There are two observations
that really need discussion. The Bush-Cheney people were able to work under
the radar screen in certain respects. That is surprising only to those who don't
understand that the Republican party sees everything in terms of winning and
losing. In counties that were controlled by Republican supervisors of elections or
Republican bureaucrats who controlled the election process, the Bush-Cheney
people were able to get things from them that in the same situation a Democratic
elected supervisor of elections would never do because they look at it more that
[they are] the supervisor of elections first, doing that job. I'm a partisan Democrat
second. But the Republicans didn't have that qualm at all. [End of Side 2, Tape
B] The Republicans, Bush-Cheney, were able to get things done in certain
counties that was not public, nobody knew about, nobody knew a challenge was
going on. The Democrats, to the extent there were some county failures, didn't
learn about these things until too late, didn't know to challenge. Things like
county supervisors of elections making decisions on their own to look at certain
ballots again and to count them and have those numbers put into the official
numbers. Why? Because of things like, we excluded these absentee ballot
votes or we excluded these, we shouldn't have, let's count them again. [This
was] not done publicly, not done with the opportunity for the world to look at
them. But they convinced their people you need to do this for us. Is that the kind
of fraud in election that should be rooted out? I think so. I'm not saying that
somebody actually was there faking ballots, I think they were manipulating the
rules to allow their people, Bush-Cheney, to get some advantage. That's one of
the areas the county operations [where] the Democratic party county
apparatus should have been much more attuned to that, but they were shut out
from those decision makers because those Republican supervisors of elections
basically made clear that we deal with Republicans, we don't deal with
P: Clearly, the Republicans won the public-relations battle because now they were
saying the Democrats are trying to stop the military from voting.
K: That was probably the best work on a public-relations campaign that the
Republicans could have done and the worst for the Democrats, because it took
them so long to decide how to proceed. It was that cautious [attitude that they]
don't want to piss off the military, don't want to upset this. The fact of the matter
is, there are rules on ballots. The rules are very easy to comply with. The rules
are simple and very objective. Unlike the Republicans are saying the intent of
the voter is, the rules are very simple. You have two signatures witnessing a
ballot. There has to be a legible postmark on it, or it has to come from the
military mail. Lots of very easy rules to follow. For Bush-Cheney, because they
thought there was a gold mine of more votes in these overseas military ballots,
they said, let's reject all those rules, even thought they're objective rules to
follow. Let's just count all the military [votes] because they're our people fighting
P: Of course, they knew they were Bush votes.
K: Right, they knew they would be Bush votes.
P: It's interesting that they were hyper-technical on the date of certification issue,
but less so when dealing with these military ballots.
K: The Gore-Lieberman group, the media message people, blew that big time.
P: Particularly Lieberman, when he was on Meet the Press.
K: I think Lieberman did sort of go out there without a real understanding of what the
debate was. He allowed the debate to be on a policy level. Do we want to have
the military vote or not? Of course. My view is I want to have every military
person vote, but I want to have them vote by operation of law. It should be a
legal vote. That's the whole point that we should have been able to [get across
in our] message. Again, one of the failures, much like during the canvassing
board process, [was] not getting prominent Democrats in on time. For example,
why didn't we have a retired chairman of the Joint Chiefs of Staff under Clinton or
under [Jimmy] Carter [U.S. President, 1977-1981] [there]?
P: The Republicans had General Norman Schwartzkopf [leader of Allied Forces in
first Gulf War].
K: [They could] come and say, as the Supreme General in charge of the military, I
want the military to vote, but I don't want any special rules for the military.
They're American citizens just like [everyone else]. They are owed the same
respect that every American citizen [is] and turn the tide. Why didn't we have
that? Does it take a rocket scientist to think of that? No, and I'm sure there are
ten former Joint Chiefs of Staff chairman who would have been able to help us
P: Someone such as [John] Kerrey [U.S. Senator from Massachusetts, 1985-
present], a Vietnam veteran.
K: [John] Kerrey, getting out there. [He could have said, I am a] Vietnam veteran, I
served my country, look at this. Those are things on the media message side
that could have really been strong ways to move the message on our side.
Instead it looked like we don't want the military [votes] to count. Again, what
does that cause people to think? Gore is not a strong military guy. He's the one
who served in the military. Bush never did.
P: One of the issues that is still being debated is that in Seminole and Martin
Counties, the elections supervisors clearly gave a privileged position to the
Republicans. In one case, Peggy Robbins [Supervisor of Elections, Martin
County] actually allowed ballots to leave her office. Nikki Clark and Judge Lewis
ruled that you shouldn't cancel all the votes because of a failure on the part of the
supervisor of elections. How do you see those activities?
K: We had discussion about that in this lawsuit in terms of deciding what arguments
to make. Because our theme was [to] count all the votes, there was a very
pointed decision to not raise any issue or claim that would result in the exclusion
of any votes, [such as in] Martin County, Seminole County, military ballots, any of
those things. Because our theme was, count all the votes. As lawyers, we can
think [of] alternatives or see that something may seem to be inconsistent, but
because this lawsuit was going to be tried [in] public and public opinion was
going to control, the decision was made [to] stick with counting all the votes. We
did, however, have very good communication with Jerry Richman, [who] was
leading the Martin County litigation and did a great job. Because it was not Gore
initiating the lawsuit, Gore-Lieberman participating, those cases, even though
great judges spent a lot of time handling it, didn't get the result that it would have
if Gore got involved in it. Was Martin County or Seminole the one where ballots
were actually taken out of [the office]?
P: That was Martin County. Seminole was where Harry Jacobs [plaintiff in
Seminole County, Florida election case whose lawsuit asked that all absentee
ballots in the county be thrown out] filed his lawsuit.
K: Right, Peggy Robins was [in] Martin [County].
P: Sandra Goard is the supervisor of elections in Seminole County.
K: I think that decision would have turned out differently, particularly where they
were able to show that this was done for partisan purposes, favoring a particular
party. I think if Gore had weighed in on it, if the awesome weight and
responsibility of electing the president of the United States had been weighed in
on that case, the result would have been very different.
P: Do you disagree then with the decisions by Judge Nikki Clark and Terry Lewis?
K: No, I think that there probably was factual support for those decisions. I've read
them, [but] I haven't read the entire record. From a public policy point of view,
from the [damage] that does to elections in the future, I think they're wrong
decisions. I think that any decision that allows people to affect the election
process internally, not a transparent decision showing up in voting, is an
opportunity for mischief.
P: You wouldn't want to disenfranchise all those voters who in and of themselves
had not done anything wrong.
K: Oh no, but there were sure a lot of voters who in and of themselves did
something wrong. For example, they asked for absentee ballots and didn't do it
right and those kind of things and I think there are ways to take care of that. I
don't want to disenfranchise anybody but by the same token people were
enfranchised who had no right to vote.
P: Let me ask you one final question. When you look back on this election, what
impact do you think it's going to have on the state of Florida and Florida politics?
K: This election has, in many respects, compelled Florida to do two things. Get into
the twenty-first century with regard to voter registration and collection [and] to
expand our base of voters from a public institutional point of view and to really
evaluate why we prevent people from voting, [such as] felons, people who have
served their time. There was a robust discussion. Second, I believe it
encourages people to recognize that if they don't pay attention to the election
process, ultimately they can't complain about any problems because voters, for
too long, didn't pay attention to the election process in Florida. We had systems
put in place by supervisors of elections that were clearly not in compliance with
how Florida law operated. Voters routinely [had] their vote denied. Supervisors
of elections knew [that in] every election hundreds and hundreds of votes were
discounted, but the public never knew that. I think now we pay attention to that.
In the long run, I think that this election will demonstrate that the Florida courts
had a very positive role in this process. I hope that what happened in November
2000, in the long run, is not overshadowed by the events of September 11
[terrorist attacks], but I'm kind of concerned that as important as this decision
was to the continued operation of our constitutional form of government, history
will not accord it the serious attention that it needs just because it came right
before September 11, which I think was far less of a constitutional issue for us. It
may have been a safety issue, but this [election] was a constitutional crisis that
was averted because of the courts being able to decide an election, not rioters on
P: Good. On that note, we'll end the interview. Thanks very much.
[End of the interview.]