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Bruce Rogow begins by speaking about his education and legal career (1). He describes what he
did on election night and the day after (1-2). Rogow is asked to represent Theresa LePore of the
Palm Beacn County canvassing board (2). He details his initial contact with representatives
from the Democratic party and discusses his strategy as LePore's lawyer (3-4). He offers his
initial opinion on the butterfly ballot and voter errors and describes the scene at the office of the
Palm Beach county canvassing board (5). He discusses the vagueness of the recount statute and
who had authority to order, conduct, and supervise a recount (6-7). Rogow describes his legal
strategy for the appeal of the LePore case (7-9). He receives criticisms for this strategy from
various operatives of the Democratic party (9-10). He speaks to Alan Dershowitz and Warren
Christopher about the case (10). People from the Gore campaign try to influence Rogow (10).
He assesses the partisanship of the canvassing board and claims that Ralph Nader, not voter
error, cost Gore the election (11-12).
Rogow discusses the problems associated with recounting the ballots in Palm Beach County (13-
14). He compares the confusion within the Democratic advisers and lawyers to the cohesion and
certainty of the Republican legal team (14). He describes the U. S. Supreme Court arguments
and assesss the lawyers involved in the case (15-18). He offers his opinion of Katherine Harris
and her work for the Bush campaign (17). He comments at length on the decision of the U.S.
Supreme Court and his opinion of what the justices thought as they made their ruling (18-23).
He mentions his feelings about the chaos that surrounded the various court cases (21).
Rogow offers his assessment of Republican operatives who worked in Seminole and Marin
counties (24). He talks about the Ralph Nader campaign and how his supporters helped the Bush
campaign (24). He considers the weaknesses of the Gore campaign throughout the country and
their legal strategy in Florida (24-25). He talks about the inclusion of illegal overseas ballots and
how Republicans facilitated their inclusion into the final tally (25). Suggests that voter error, not
the butterfly ballot, caused the controversy in Palm Beach (26). Finally, Rogow considers the
long-term impact of the 2000 election on the nation and the political future of Florida governor,
Jeb Bush (29).
Interviewee: Bruce Rogow
Interviewer: Julian Pleasants
Date: March 5, 2002
P: This is March 5, 2002. I am in Fort Lauderdale, Florida. This is Julian Pleasants
and I am interviewing Bruce Rogow. Briefly summarize your legal background.
R: I graduated from the University of Florida College of Law in 1963. Went to
Mississippi, represented civil rights workers in 1964, 1965, 1966. Came back
and was the assistant director of the legal services program in Miami, 1967,
1968, 1969. Taught at the University of Miami law school at that time too, until
1974. Then I joined the faculty at Nova Southeastern University when we
opened the law school in 1974. I've been there ever since and [have] been
engaged in litigation ever since. Mostly appellate litigation, Supreme Court of the
United States practice, argued eleven cases in the Supreme Court of the United
States. Represented doctors, lawyers, Indian chiefs along the way and had a lot
P: What is your political affiliation?
P: Could you describe briefly what Election Day was like for you and when you
realized that this would be an extraordinary election?
R: Election Day was like any other Election Day. I voted for [Al] Gore [unsuccessful
Democratic presidential candidate, 2000; U.S. Vice President, 1993-2001] and
went that night to a party where we were watching television and following the
returns. I guess around 8:00, when we began to get the predictions, I realized
that this was an interesting election. There was a-flipping and a-flopping about
who was ahead. I went to bed. I don't know if, when I went to bed, I knew what
the outcome was. In any event, in the morning I came in and there was a
telephone message. Beverly Pohl, who works with me, said there had been a
telephone message late on Tuesday night from the county attorney's office in
Palm Beach County. Maybe it wasn't Tuesday, maybe it was Wednesday night.
I don't remember. I know this. Beverly commented to me that her mother who
lives in Palm Beach County had some trouble with the ballot and she said it was
kind of confusing. This must have been Wednesday [that] this was happening. I
didn't pay much attention to that. I got a couple of calls Wednesday morning
from several people who are involved in state politics, about my getting involved
in the challenge, probably to the butterfly ballot. I think that was their initial focus.
It was kind of scattered and I didn't have any clear sense of anyone being in
charge. I said to them, if you get somebody in charge who calls me, then I'd be
interested in talking to them. Later on in that afternoon, after about three or four
telephone calls from different people, I called Carol Browner [administrator,
Environmental Protection Agency (EPA), 1993-2001], who was the head of the
EPA and who I knew was close to Gore, because I knew her from the time she
was a child. I left a message to have her call me and my message was going to
be that Gore needs to get somebody on the ground to be in charge of this. All
these people who were calling were all over the lot with their different ideas. I
realized right away that somebody had to be in charge. I didn't know it was going
to be. I didn't know if it was going to be me. Certainly, somebody had to make
some decisions. My message to her was going to be that, to have Gore find
somebody and make sure that somebody's in charge. That was Wednesday
afternoon, late. She was not there. It was Wednesday night that I got the call
from the county attorney's office. I left my home number with Carol, she didn't
call me back that night. Later that evening, a message was left here at this office
from the county attorney's office in Palm Beach County, who we had represented
successfully several times before. We'd represented the county in some high-
profile cases. Leon St. John [Palm Beach County attorney] called. The message
was [that] he'd like to talk to me about representing Theresa LePore [supervisor
of elections, Palm Beach County]. When I came in Thursday morning, I called
Leon, then I got a call back from Carol Browner's secretary that she was out. I
forget what exactly the message was, but I couldn't talk to her after that because
by that time I'd talked to Leon and agreed to represent Theresa LePore. That's
kind of how it got started. That would have been Thursday morning that I agreed
to do that. By Thursday afternoon, there was the first hearing. Somebody had
already filed a lawsuit in federal court in Palm Beach County. Leon [St. John]
wanted me to come up and handle that. He said Bob Montgomery [attorney for
Theresa LePore in 2000 election] had also been hired. I had represented Bob
before in the tobacco fee litigation and I liked Bob a lot and it was fine. Leon was
a little worried that maybe I'd be offended or Bob would be offended that we were
both in it together. It was no problem for us.
P: How did that work? Were you her official counsel or were you co-counsels?
R: I don't think we ever had anything as formal as that. I was her counsel, Bob was
her counsel. I think she called Bob because Bob is a big player in Palm Beach
County and the county attorney's office called me. Since Bob and I were so
close and good together, it was not a problem for either of us or for Theresa
LePore. If anything, I think she knew Bob, she didn't know me, so I think it
probably made her rest easier having Bob around.
P: There was a challenge to the butterfly ballot, which obviously the Democrats
thought was illegal. As a lawyer did you think that case had any merit?
R: No, I knew [we] were not going to get another election. They're not going to hold
a re-election. The ballot may have been confusing, [but] the real problem was
with voters not doing what they needed to do. Even though [it] might not be fair
to put all of the responsibility on them, voters make mistakes all the time on
ballots. I knew that they were not going to knock out the butterfly ballot. I knew
that that wasn't going to work. I had not even seen the ballot, remember.
Actually, not until late Thursday did I even see the ballot. I knew that the
challenges were not going to work. The first challenge, I don't know what the
basis of it was. People then began to rush to the courthouse to be in on the
action. While I was driving up [on] Thursday, I got a call from Mitch Berger
[attorney for Al Gore in 2000 election], who I've known for a long time too. Mitch
has heard that I was now representing Theresa and I was heading to federal
court and here was this lawsuit brought by two people who the Democrats had
no control over. They were still trying to figure out what their strategy was. He
said, we want to get this case dismissed. I said, well, what can I do? I'm the
defendant, I want to get it dismissed too, but I can't dismiss it just like that.
P: This is in federal court before Judge [Kenneth] Ryskamp [U.S. District Court]?
R: That's right, this is on a Thursday. I drive up and I get to the federal courthouse.
The two young lawyers, I forgot their name, they knew me and when I came in,
Sid Stubbs was up there with another woman, apparently from the Democratic
National Committee, and somebody else. Next to Ryskamp's courtroom was a
little anteroom where you interview witnesses and things. When I came in, the
Democrats took me into this room. Mitch had said that we need to get ahold of
these lawyers. They took me into this room and said, we want to talk to these
lawyers. I went outside and the two lawyers were there and I took them in to the
room where there were these three people. Sid Stubbs and this woman. This
woman had a couple of cellular telephones. I said, these people want to talk to
you, these are Democratic Party people, they want to talk to you. Since I
represent the defendant, I'm leaving, I'm out. So I walked out of the room, I don't
know what was said. A couple of minutes later, they came out and one of these
two lawyers said to me, are those the real people that we were talking to? I said,
they're the real people and you better do what they say. He said to me, as an
officer of the court, this other lawyer, are those the real people? I said, yes and
you better do what they say. It was kind of like a scene out of the Godfather
[novel and movie about the Mafia]. I didn't know what was said to them inside
P: Was this Mitch Berger?
R: No, Mitch wasn't there. Sid Stubbs was there, he's with Jones & Foster [law firm]
and he's a fine lawyer in Palm Beach County. Somehow he had been brought
over. The main person was a woman who I [had] never met before, I don't even
know what her name is.
P: Were they representing the Democratic party?
P: Or more specifically were they representing Al Gore?
R: I don't know. Mitch Berger had contacted these people and got them there on
the scene. That's what I think, you'd have to talk to Mitch. All I know is Mitch is
telling me he wants it dismissed. He says, can you get us to talk to these people
or something like [that]? Then the next thing is, we go into the courtroom and we
announce our appearances and they immediately take a voluntary dismissal of
the case. So whatever was said to them, and I don't know who talked to them.
Was it Bill Daley [campaign manager for Al Gore, 2000 election; U.S. Secretary
of Commerce, 1997-2000]? I think afterwards I heard it was somebody big.
That's why they asked me, are these the real people? Whoever it was, I don't
know. I had to laugh, that was pretty funny. That was the first day.
P: One of the things that's interesting about the butterfly ballot, Judge Richard
Posner [Judge, 7th Circuit, U.S. Court of Appeals; author of Breaking the
Deadlock: The 2000 Election, the Constitution and the Courts] in his book said
that Democrats confused machine error with voter error. If you look at the
statistics, ninety-six percent of the people in Palm Beach County voted correctly,
without any problem. Would you agree with that assessment?
R: It was voter error, but the ballot was troublesome, no question about it.
P: There is no legal remedy for that?
R: Not really, no.
P: When you took over as Theresa LePore's lawyer, what was your initial strategy?
R: To try to calm her down. She was in a heck of a state. To put the canvassing
board in Palm Beach County kind of on a plane that was nonpartisan, just trying
to do the right thing. They had no dog in the fight. Certainly, Theresa didn't.
She was under fire because of the butterfly ballot. You know Judge [Charles]
Burton [Judge, County Court, Palm Beach County; chairman, Palm Beach
County Canvassing Board] and Carol Roberts [vice-chair, Palm Beach County
Commission; member, Palm Beach County canvassing board]. Carol Roberts
especially, people thought had an agenda. She was a Democrat, an active
Democrat, but she had a different role there on the canvassing board. I think that
my goal for Theresa was to keep her above the fray and to have her make a
decision based upon the law. That really was it, certainly at the beginning, it was
just to have her vote according to what the legal requirements were. There were
other things happening. Carol Roberts was talking to the Democrats or they
were talking to her and pressure was being brought all around.
P: Throughout the operations of the canvassing board, were you advising Theresa
LePore on how to act and how to vote?
R: On how to vote, yes, giving her advice and what the choices were. Although the
one critical vote that Saturday night, Montgomery was up there. Montgomery
was the one who gave her the advice then to vote in favor of the recount.
P: That was when Judge Burton needed a second on a motion?
R: I don't remember that.
P: She was a little bit confused in her vote. She changed her vote one time.
R: Some of this kind of fades because it was so hectic. Clearly, Roberts was going
to vote for the recount. Burton wasn't quite sure where he was going. After they
did that first recount, the one percent recount, they came up with nineteen votes,
I think it was. Then it was clear to me, I told her, you've got to vote for the full
recount. Even though I knew that extrapolated, with 100 percent, you were not
going to get 1,900 votes.
P: That's what Carol Roberts tried to indicate in the discussion.
R: It was enough because the spread was 300 and some odd. Something like that,
P: Yes. When you begin this process, early on there is a problem, because Judge
Burton wants to ask the Secretary of State for some advice as to whether or not
they can recount. Then there's some confusion about that. At one point they're
going to get one view from Secretary Katherine Harris [Florida Secretary of State,
1998-present] and a different view from the Attorney General Bob Butterworth
[Attorney General of Florida, 1986-present]. Could you explain that?
R: Secretary Harris had a woman that came down from her office.
P: Kerey Carpenter [assistant general counsel for the Florida Department of State]?
R: Right. Saturday morning was kind of the mad morning when they were doing the
recount and Ben Kuehne [attorney for Al Gore in 2000 election] was standing up
on a ledge shouting out. The Republican...
P: Mark Wallace [attorney for George W. Bush in 2000 election].
R: He was there shouting. It was a great scene. I thought it was amusing. I didn't
take it as seriously I think as all of those people did. I've been around a long time
and seen people be electrocuted, so this was a far cry from that. Then there was
Kerey. She was good, she was quiet. It was clear to me and to Bob that she
was in there to protect George Bush. We were not fooled by the Secretary of
State's position. In fact, at lunchtime we took Kerey Carpenter to lunch at Bob's
country club. We all went and had lunch over there. It was a charming time, we
had a good time.
P: Ben Kuehne told me about that story.
R: No, Kuehne wasn't there.
P: He took her to lunch too.
R: Some other day. I didn't know that Burton was going to ask for an opinion. I
think Leon St. John was the person to whom Burton posed that question. As I
recall it, Leon didn't realize that by asking for an opinion and getting it, you were
going to be bound by it. I don't know if Burton knew that. Nobody was paying
attention to election law until this happened. Nobody makes a living on election-
law litigation. It's not the kind of thing that people are steeped in. Everybody had
the little election-law handbook. I don't want to say it was a mistake. If you are
ascribing good will and good motivation to everybody, it wouldn't be a bad thing
to do, to ask for some legal advice from the Secretary of State. Except in this
case, the Secretary of State was the deputy campaign manager [or] co-chair. Of
course, on the other side you have Butterworth. If there's a lesson out of all of
this, it was that it was ridiculous to have those two state officers involved in the
campaigns of the presidential candidates. I thought that was outrageous from
the beginning. I didn't like it. Even before this happened, I didn't think that was
right. Anyway, I wasn't there when Burton asked. I don't know what the details
P: Carol Roberts seems to indicate that Kerey Carpenter misled Judge Burton and
Judge Burton initially thought that she was an unbiased representative from the
Secretary of State's office. He was not told that to request that opinion would
make it a mandatory opinion.
R: I believe that. I think he asked Leon or Leon was in that loop. I got the sense
afterwards that Leon felt bad about that. I told him there's no reason to feel bad
about it. It was not a bad thing to do. It may have turned out not to be a wise
move, given the partisanship of the Secretary of State's office. I always thought
Kerey was kind of like a mole in this thing. She had come up from underground
and was charming and nice and seemed like she was going to try to help. There
was a mandate, I think. You'd have to ask Kerey about that.
P: Certainly, the law is unclear, I think, in that case. In 111, it says the vote shall be
counted, and, in 112, it says the vote may be counted. How did the canvassing
board deal with that issue?
R: I don't remember exactly. My take on it was pretty simple. If you do the one
percent and it comes up [that] it could change the outcome, then you need to do
the recount. It was that simple.
P: In a legal sense, if you were to get an opinion from the chief law enforcement
officer of the state Bob Butterworth and the Secretary of State on this issue,
which one's opinion would be binding?
R: The Secretary of State's would be binding, really, under the law. When she
came out with that [opinion] and then Butterworth in response came out with his
opinion, I remember that was like Monday night or Tuesday night. That was
happening pretty quickly. Leon called me and they were all in a dither about what
to do. This is funny because I thought this was a great idea. Jeffrey Toobin
[author of Too Close to Call: The Thirty-Six Day Battle to Decide the 2000
Election] thought it was an arrogant idea. I got a nice note from Jeffrey. I don't
know if you saw the article in The New Yorker. Later he said he was my Boswell
and I eclipsed Larry Tribe [legal scholar; author; attorney for Al Gore in 2000
election] and Ted Olson [attorney for George W. Bush in 2000 election; U.S.
solicitor general, 2001-present]. He really panned me for it. Here was the
canvassing board, now with two conflicting opinions from two state officers. I
was sitting in the sauna. Leon called me that night. [He wanted to know] what we
should do and everybody was in an uproar. That's when I came up with this
notion of an interpleader action. The idea came to me in the sauna. My client is
now kind of basically representing the canvassing board, it was more than just
Theresa. They're holding the votes. Just like in an interpleader action.
Somebody is holding the money and the holder of the money says, it's not mine.
It may be A's or it may be B's. You file an interpleader action and the court has
A and B fight it out among themselves. That's kind of [how] I viewed the situation
here. The canvassing board was holding the recount, could they do it, couldn't
they do it? Secretary of State said no, Attorney General said yes. I filed the
original interpleader action in the Supreme Court.
P: Why wouldn't you file that with Judge Jorge LaBarga [Palm Beach County Circuit
R: Because it would be appealed by either side, it would delay it more if you filed it
in circuit court. I thought that was not good for either side. Since we're dealing
with two state officers, the Supreme Court of Florida has original jurisdiction over
writs directed to state officers. Knowing a lot about appellate jurisdiction, I saw
that you could go directly to the Supreme Court of Florida on it. It was mostly
because I didn't want it delayed. [If] you file it before LaBarga, then you got a
hearing before LaBarga the next day and then an emergency appeal to the 4th
DCA [District Court of Appeals], which maybe would bypass it to the Supreme
Court. To me, it was just the right way to go to resolve this dispute between the
Secretary and the Attorney General.
P: Jeffrey Toobin criticizes you because he says that that delayed it four days.
R: I think he's wrong about that. I don't know, could I have just told her to go ahead
and count? My position was they were in such a jam, no matter what they did,
they were going to be criticized. If I were a public official and I had the state
attorney general telling me one thing and the Secretary of State the other, I
would want to get it resolved by the only place it could be resolved. It couldn't
have been four days. I think the decision was on Thursday.
P: That was November 16.
R: Right. I think I filed it on Tuesday. I've got the files here somewhere. We did it.
I think we called Tom Hall [the Clerk of the Supreme Court] and the question
was, should we e-mail it up? Since it was late in the day anyway, I think we Fed-
Exed it up and it got there Wednesday morning and then the decision came out
Thursday. I think Thursday was the day everybody was yelling at me about
having her vote to recount, to start the count again, whatever it was. I said, no,
I'm waiting for the order from the Supreme Court, which came late Thursday. It
was Thursday, I think, that [Alan] Dershowitz [lawyer; professor; author] called
me and Warren Christopher [U.S. Secretary of State, 1993; Deputy Secretary of
State, 1977-1981] called me to yell at me.
P: Who were you talking to first?
P: You hung up on Dershowitz when Warren Christopher called?
R: Dershowitz was yelling at me. Dershowitz [called] on, it had to be [Thursday]
because Monday we had the hearing before Judge [Donald] Middlebrooks
[Judge, U.S. District Court]. Saturday, we have the canvassing board meeting
out in the open atrium and I come up [to West Palm Beach] with Beverly early
Sunday morning and we do the response because we got served Saturday with
the Republican lawsuit. Ted Olson's [basic] idea was [to] file [based on] equal
P: This was an injunction to stop the count?
R: Yes. This was on Saturday. We get served with that Saturday afternoon, late
morning. We thought that they were going to file something Saturday morning
early. I went up to the Palm Beach federal court early Saturday morning around
8:30 or 9:00 and there were some marshals around. We thought they were
going to go there because they were going to try to file it there and hope to get
Judge Ryskamp, who they thought might be sympathetic because he's
Republican. They didn't file anything, nothing happened. Then we went to meet
with Theresa, we had the canvassing board meeting, the one that was all out -
there [are] front-page New York Times pictures of that. That's where Ben and
Mark Wallace are yelling and Kerey shows up for the first time. Right around
lunchtime, we get served with the lawsuit, the Republicans' lawsuit to try to stop
the recount. Saturday night [the Palm Beach County Canvassing Board] has the
meeting. Early in the morning, they decide to start the count again. That's when
Bob is there. I had left around 10:00 or 11:00 or so, but Bob was there when
Theresa votes to start the recount. This was interesting. I was at home with my
daughter and Bob calls me all excited about what happened. I knew what was
going on, I was on the telephone with him, but he was there with Theresa when
she decided to vote for the recount. Sunday, I go up early in the morning and do
the response to the motion for preliminary injunction in the county attorney's
office. Beverly and I go up there and spend twelve, fourteen hours or so doing
that. I think Judge Middlebrooks had a fax line or something set up to get stuff
sent to him because he set the hearing for the following Monday. Then we go
down on Monday and there's that big hearing and that's when Tribe is there and
Dershowitz and Ted Olson. I have a drawing [of the hearing], by the way, that's
P: Let me ask you a procedural question. Legally, the canvassing board has the
authority to determine a recount. You could have requested or advised that
Theresa LePore vote in favor or a recount and would not have had to appeal to
the Supreme Court.
R: I don't remember. My take on it was mostly from Leon [St. John], the county
attorney's office was in pain over this. One, because they got hoodwinked with
the Secretary of State's [binding opinion]. Two, because they wanted something
[that was] sure, they didn't want just some legal advice saying [to] go ahead and
do it. Theresa LePore is the swing vote, obviously, in this. There are these
conflicting opinions. Maybe I could have said, go ahead and count. I just
thought the right thing was to ask the court. You've got these two high state
officials [with conflicting opinions].
P: When you made this interpleader, did you get any advice from the Gore team or
R: They didn't [give any advice]. I think people were calling saying, count. Have
her vote in favor in the count.
P: Did the Florida Supreme Court rule that Judge LaBarga's decision to go on with
the count was the binding legal authority?
R: The case, I don't remember exactly what it was. They didn't rule on the
interpleader per se. But the bottom line of the order was that the count can go
on. That was clear.
P: Did Warren Christopher or others ask you to drop the suit?
R: No, they called on Thursday. Dershowitz called first, yelling at me, [saying]
you're going to cost Gore the election. [I said,] Alan, stop yelling. I said, I got
conflicting opinions, we asked for it. I think we're going to hear today, so it's not
such a big deal. He just carried on. I was here in the office standing there and
then Christopher called and Beverly said, it's Warren Christopher on the line.
He's just yelling at me, Alan was, so I just hung up on him. Said, goodbye Alan.
I hung up on him. Christopher says, hello Bruce. That was kind of strange, I
never met the guy before. Then he says, thanks for doing such a good job for
us. It's like he was confused. I said, Mr. Christopher, I don't represent you or
Gore. I have a different client. He was quick then to back up. He said, I'm sorry,
but we we'd like to get the recount going. I said, as soon as we hear from the
Supreme Court, we'll do it. I didn't think I was so hard on him. Toobin says that
Christopher said that it was easier to deal with Kim II Sung [president, North
Korea, 1972-1994; prime minister, North Korea, 1948-1972] than with me. I don't
think that was so. I've never been hard to deal with.
P: It is interesting because your client was Theresa LePore, not the Democratic
party, not Al Gore. Other people were working primarily for Gore, including Ben
Kuehne and Mitch Berger and others. Do you think that was an attempt to put a
little pressure on you?
R: It was, no question about it. Mitch Berger told me later on that he told
Christopher not to do it. He didn't think that was good. If Mitch called me Ben
Kuehne called me, Mitch may have called me too that's no problem. They're
great, we talk all the time. I thought that was a little much. Coming on the heels
of Dershowitz, with this.
P: It sounds kind of like a tag-team attack.
R: They were not together. There's no question in my mind, they had not
coordinated the calls. They were all on my tail about that. I was not trying to
delay this thing. I was not trying to cost anybody the election. I've got a client.
She wants to do the right thing and be assured that it's the right thing and not be
caught up in all that turmoil. Going directly to the Supreme Court of Florida
seemed to me like a sensible thing to do.
P: Would you say that part of the problem was that this was Judge Burton's first
time serving on a canvassing board? Theresa LePore didn't have a lot of
previous experience as election supervisor and it was such an extraordinary set
of circumstances. The whole world was watching and I guess that made it more
R: Certainly, the outside pressures added to the difficulty of using good judgment
because you can't be immune to all these people yelling and carrying on. I think
the most important thing was that this was so novel. There was no track record
here to look at and say, here's what we do in this kind of situation. Everybody
was kind of feeling their way around. Then of course, it's magnified by the scale
of what's going on. People did have an agenda. There was no question that it
was hard to separate out your political desires from your legal advice. I voted for
Gore, I certainly would have preferred to have Gore be elected. That wasn't my
brief to ensure Gore's election.
P: Obviously, it was very hectic during the counting. I know one time when Judge
Burton moved it outside, it just became impossible to do anything.
R: I didn't spend much time there. I was up there once or twice and on Thursday
afternoon, there was a press conference at the government operations center,
the one out west. Whatever they call that, the big facility with all kinds of
security. [At that press conference,] I said, we're waiting for word from the
Supreme Court of Florida. Then it came within an hour or so after that. I wasn't
there watching the count. I had no interest in watching them do that.
P: How would you assess the impartiality of the canvassing board? Some
Democrats were upset with Burton and LePore, and the Republicans were upset
R: I think Carol Roberts was the most partisan and understandably so. She's an
elected official, she's a Democrat. Yet, the votes she made were not
unprincipled. It wasn't as if she cast votes that were unhinged from the law. She
was willing to be more aggressive in terms of the recount. Burton was hesitant
because he didn't know exactly where he was stepping. LePore didn't have any
clue as to what the law required. She's not a lawyer, she'd never been in a
situation like this before. She was a public official elected to get out a ballot,
make sure the votes were counted, and that was it. She was in very deep and
dark water and she needed some help to try to see what the right thing to do
was. That's what her goal was to do the right thing. Plus, I think she felt very
responsible. [Because of] the butterfly ballot [issue], she lost weight, she was a
wreck. I think that she felt that she was responsible for all of this. Were it not for
her, none of this would have happened. I can't tell you inside what it was like for
her, but I think it was real hard.
P: One media discussion of the event described her at one point as almost
catatonic, because she was so overwhelmed with events. Do you think the press
was unfair to her?
R: No, I thought the press was great. It was a big issue, a big event. I don't think
they were unfair to her. I think afterwards, she had some nice interviews,
Barbara Walters [news anchor, journalist] or somebody with her. Besides, it
didn't make any difference what they said. This was entertainment. It got
beyond the law. The whole thing was riveting. It was a great soap opera. An
electoral soap opera. It had all the great characters. Probably no time for sex,
everybody was so busy.
P: Certainly unprecedented, wasn't it?
R: I'll bet. If you did that analysis. All these people in Tallahassee working twenty-
four hours a day, I don't think they had time for anything else.
P: Do you think the butterfly ballot cost Al Gore the election?
R: Yes, it did. But Ralph Nader cost Al Gore the election. That's the bottom line. If
you want to put the finger on anybody, it's Ralph Nader. The arrogance of him
saying that there was no difference between Al Gore and George Bush was
ridiculous. He got 10,000 votes in Florida.
P: He got more votes in Alachua County than the 537 that Bush won by. You would
assume that Nader voters would have voted for Gore.
R: I think he got 10,000 in the state. That would have more than made up the
difference for voter error in Palm Beach County. If you really want to know who
cost him the election, it was Ralph Nader.
P: One of the problems that the canvassing board had was changing standards.
They originally had the 1990s standard and then they were trying to determine
how much sunlight was coming through the ballot, whether it was one hanging
chad and all of that. What did you advise Theresa LePore?
R: I didn't want the standard changed. I saw right away that the Olson suit, the
equal protection argument, was the killer. That was the problem. That scared
me more than anything. In fact, in the first hearing on Monday before Judge
Middlebrooks, the quote that got me all of this commentary was, I said that in
Palm Beach County, only penetration counts, not pregnancy. That was the prior
standard. I thought that was the right standard. I thought that once they started
switching around and changing those standards, it was all over. What it showed
was the whole thing was chaotic. I told Warren Christopher that my concern was
actually the Eleventh Circuit and the Supreme Court. They wanted to be in
federal court for good reason, because they wanted to get as quickly as they
could to what they thought was a friendly court.
P: The Eleventh Circuit is known as a conservative court.
R: They came out fine. They affirmed Judge Middlebrooks and they went along with
what the established law was. It was clear to me that was the problem, you just
can't do that.
P: At this point, you were pretty sure this was going to the United States Supreme
P: At this point, you also assumed that Gore would lose?
R: In the Supreme Court? [Yes.]
P: I've talked to Dexter Douglass and other people and they assumed it would never
get to the United States Supreme Court.
R: That was the endgame, it had to get there. Once they started raising the equal
protection arguments, I knew it was going to get there.
P: Let's talk about Judge Middlebrooks and that particular appeal. Who contacted
you to present that case?
R: The county. That was my work on Sunday.
P: You're still representing Palm Beach County at this point, not anybody with the
R: Never. Right.
P: What was your initial argument and strategy when you are presenting the case to
Middlebrooks? I remember you cited Gus Beckstrom v. Volusia County
Canvassing Board [1998 Florida Supreme Court ruling that states that courts
should not frustrate the will of voters if there is unintentional failure to perform
election duties and the will of the voters can be determined, but an election can
be voided if there is doubt that the will of the voters was expressed.]
R: Yes. I don't remember. [There is] so much in between. I represent F. Lee Bailey
[defense attorney, represented O. J. Simpson and the Boston Strangler] and I'm
talking to him this morning. When I move on from these things, I move on.
Whatever the record says, I said. The bottom line was that I didn't think that
having the federal court interfere with local election procedures was something
that the court should be doing. There are all these federalism and comity
arguments too, I'm sure.
P: In other words, this is clearly a state, not a federal, matter?
R: I wouldn't say that because [there may be federal issues] when you raise equal
protection arguments. The point was, there were remedies in the state system
that you could use to raise all of these things.
P: In fact, the Beckstrom case says if there is reasonable doubt as to whether the
voter's intent has been accurately reflected, then the court can order a new
election. That is a precedent, at least.
R: I don't remember.
P: What was the argument of the Republicans? Ted Olson pleaded that case and
this is the first time that I recall seeing the Fourteenth Amendment issue raised.
R: Remember that's early. That's Saturday. It gets raised in his complaint which is
filed on Saturday in federal court. It's raised pretty early.
P: He also argues it's a violation of 3 U.S.C. 5 and there are some First Amendment
rights in here. Do you think he was arguing generically?
R: I don't think that they had quite figured it out yet either. I think they were kind of
struggling in constructing the arguments. This is where the Democrats, [and]
maybe they didn't have any choice, but this is where mistakes were made. As it
unfolded and became more chaotic, then those equal protection arguments
gained more force. For example, had you stayed with the rules that were in
place early on in Palm Beach County, only penetration counts. Had the rules
been the same in every place there were recounts, had the Democrats said, let's
recount it statewide, any of those things, they would have avoided all the equal
protection stuff. I can't blame them. They were hunting for votes. Nobody on
the Democratic side really saw that far ahead. When David Boies [attorney for Al
Gore in 2000 election] came in, it was too late, the die was cast. That's why they
[should have] had somebody on the ground Wednesday [that was] able to survey
the whole thing. Later on I read in Toobin's book that James Baker [U.S.
Secretary of State, 1989-1992; campaign manager for President George Bush,
1988; U.S. Secretary of the Treasury, 1985-1988] knew right away where this
was going. If that's so, my take on this afterwards was I'd hire a Republican
lawyer, not a Democratic lawyer. I didn't think the Democrats showed me much
in terms of how they managed this campaign, this legal war. The Republicans
did a good job of organizing it, of seeing way ahead. The Democrats, because
they are hunting for votes, created this chaotic situation that created or
strengthened the argument. Gave it more legs, more traction than it would have
P: In fact, Dexter Douglass was arguing early on, they ought to go directly to the
contest and let the judge make the assessment. Do you think that was a mistake
not to do that?
R: Yes. I think Dexter is a savvy guy. I don't know who is in charge up there. I
don't know if anybody was [in charge].
P: Maybe that was part of the problem. They were going through several lawyers,
there was Ron Klain [chief of staff to Vice-President Al Gore; head of legal
operation for Al Gore in 2000 election], whereas with the Republicans it was
pretty clear that Ben Ginsburg [attorney, represented George W. Bush in 2000
election] and Baker were in charge. They were making the decisions and I think
the Democrats were a little muddled.
R: They were, from that first Wednesday. Baker flew right down and got in charge.
Christopher was no match for Baker in this kind of thing. The Democrats are
unruly anyway. They're hard to control, really. It fit the personality of the party,
so it shouldn't come as a surprise.
P: One commentator said that the Republicans fought the battle to win and that
Gore and the Democrats were more concerned about public relations.
R: I guess. I don't know, I can't comment. I observed it at other levels. Watching it
as a lawyer, the Republicans were better lawyers, more organized, more
focused. They had the benefit of a Democratic team that was just all over the lot.
All of these challenges were filed down here by these various plaintiffs. [At] the
hearings before Judge LaBarga, fourteen lawyers would each want to get up and
spend two minutes. It was dumb. What's the answer? The answer is, if you're
in charge of the Democratic team, you read the riot act to these people. You want
to help us? Stay out of here, don't do this. That's not the way they operated.
Maybe they couldn't.
P: All these cases obviously make them a bit weaker because they're having to
appear in Judge Lewis' court, in the Florida Supreme Court, in front of Judge
LaBarga, in federal appeals court. If you have to come up with some kind of brief
in twenty-four hours, it's difficult to be very effective, is it not?
R: It is, but I think it's more than that. I think standing back and looking at it, you
could see that they were disorganized and couldn't control the litigation. The
Republicans were pretty much able to control the litigation. The bottom line is
they had one vote. [Anthony M.] Kennedy [U.S. Supreme Court Justice, 1988-
present] was the vote that made the difference. I saw that the first argument.
Kennedy was upset by the fact that there really were no standards, it was just a
mess in Florida. That was the swing vote. You knew where the other four were
going. You knew where [Sandra Day] O'Connor [U.S. Supreme Court justice,
1981-present], [William] Rehnquist [U.S. Supreme Court justice, 1972-present,
chief justice of the U.S. Supreme Court, 1986-present], [Antonin] Scalia [U.S.
Supreme Court justice, 1986-present], and [Clarence] Thomas [U.S. Supreme
Court justice, 1991-present] were going to be. No matter what, they were not
going to vote for Al Gore. Kennedy I thought was the swing. When Kennedy in
that first argument was shaking his head visibly, I thought [he was] visibly upset
by Tribe trying to explain how this was working.
P: Justice David Souter [U.S. Supreme Court justice, 1990-present] said if he had
one more day, he might have been able to persuade Justice Kennedy to change
[End of side Al]
P: Give me your assessment of Ted Olson's presentation in the federal case before
Judge Middlebrooks. He argues the issues in terms of the Fourteenth
Amendment, that there was no standard, they were wildly permissive, changing
the rules, unreliable. I read somewhere that you thought some of his
presentation was dishonest.
R: The part that was dishonest was in the rebuttal, [was in regard to] the Texas
statute, one of the features of the Gore argument [that] we adopted in our
memorandum. [It stated] that in Texas they had something similar that allowed
this kind of recount. In rebuttal he got up, I forget what it was but it had to do with
the Texas part. It was just completely wrong about Texas. [He] didn't even tell
the judge that Texas had these other two sections. It was rebuttal, you couldn't
get up and say anything after that. I thought that was kind of disingenuous.
P: That was about counting dimples?
P: How would you assess the work of Larry Tribe before Judge Middlebrooks?
R: Tribe was good. A woman in Atlanta did a lot of the writing for Tribe. Teresa
Roseborough [attorney for Al Gore in 2000 election], I don't know if you've come
upon her. She's great. I talked to her early on. A lot of Tribe's stuff went into
areas it didn't have to go. He raised some issues I just didn't think were going to
get us anywhere. He knows a lot and he can cover a lot of ground. His
presentation was good, in the Supreme Court it wasn't as good. It's not so much
his fault as it is that the case was a mess by then.
P: Why do you think he was replaced by David Boies?
R: I don't know anything other than what I read in these books. I think part of it was
because they weren't so taken with Tribe in the Supreme Court. I didn't find him
to be so great in the Supreme Court. I was just there watching, sitting at the
table. The interesting thing was, I had gotten the call. They had talked to me
about sharing the argument with Tribe. Butterworth wanted Paul Hancock
[attorney representing Florida Attorney General Bob Butterworth] from the
Attorney General's office to do it. [That] was fine with me and Paul was very nice
about it. He said he knew that they had talked to me about sharing the argument
with Tribe. I would have liked to have done it, but Paul was probably right. I
didn't have any real interest in the outcome so it would have been pleasant to do
it or maybe it wouldn't have been so pleasant.
P: At what point did you no longer represent Theresa LePore?
R: I don't think there ever came a time. Are you [talking about] the whole
canvassing board? I don't know, it kind of morphed into that. There was not any
certain point where all of a sudden I was representing [them].
P: You were officially her counsel all the way through until the election was formally
R: I would say the canvassing board's too. When we filed in the Supreme Court, it
was on behalf of Theresa LePore and the Palm Beach County canvassing board.
It kind of blended together because their interests were the same at that point.
By the time we were in the Supreme Court of Florida, the canvassing board and
Theresa LePore were one and the same for the purposes of those cases.
P: How would you assess the impartiality of Secretary of State Katherine Harris?
R: Well, she wasn't impartial, there was no question about it. Nobody should be
surprised about that. Once she decided to be the co-campaign manager, how
could she be impartial? By the same token, how could Butterworth be impartial?
Institutionally, to me, that was probably the most offensive thing about this to
have them be the co-campaign managers and take a role in this. Harris, of
course, because Republicans are more Machiavellian, I think, about this kind of
stuff, was more effective. Neither of them were impartial. They could have been
campaign managers, but they should have recused themselves and said, in this
dispute, we were campaign managers, we're taking ourselves out of this and
delegating it to some deputy who is pure and clean. Assuming that there were
some deputies that were pure and clean.
P: I've talked to Joe Klock [attorney representing Katherine Harris during 2000
election], who represented Katherine Harris, and he claims that according to the
law, the certification is seven days after the vote. Judge Lewis even ruled she
had the discretion to make that decision, therefore, she is within the law. Is there
some specific decision she made that you thought was grossly impartial?
R: No, because I didn't focus on that. I think if you're looking for one I don't want
to call it underhanded, that's not fair one tricky thing, it was Kerey Carpenter's
suckering Burton into seeking [Harris's] opinion. In terms of certification, all
those other kinds of things, I didn't pay much attention. By then it was really
beyond me. That had nothing to do with anything I was involved in. We wanted
to keep Theresa and the canvassing board on the right path. Whatever Bush
and Gore fought about was their business. Even the appearance of impartiality
certainly could not be there either for Butterworth or for Katherine Harris.
P: I thought it was interesting that she did file a suit to stop the recount, which I
thought in and of itself was a little bit partisan. Why would the Secretary of State
file such a suit?
R: She's partisan. Shouldn't even be embarrassed about that. Joe shouldn't be
embarrassed about that.
P: Let me ask you about the first Florida Supreme Court November 16 decision that
says Palm Beach and Broward County can continue the hand count. One of the
issues that I'd like to get your reaction to is the safe harbor day. Initially before
the Florida Supreme Court, David Boies agreed that it was December 12 and
later of course tried to argue that it was December 18. Do you have any views
R: No. Remember all of those kinds of issues, while at the time I paid some
attention, just as a matter of academic interest, they were not any of our
arguments. It wasn't anything that I needed to invest myself with one way or the
P: The United States Supreme Court gets involved and they remand the case back
to the Florida Supreme Court. Why do you think they took that case to begin
R: Let me go back a bit because they granted cert over Thanksgiving weekend. I
was up in North Carolina. We knew a cert petition was going to be filed from the
Supreme Court of Florida decision. The clerk called probably on Wednesday or
so, and said that they wanted briefs and opposition by Thursday at midnight,
something ridiculous. I called Beverly and I said, we're not going to do that.
We're going to enjoy Thanksgiving. We filed our brief in opposition sometime
Friday. I think they took cert because they too were stampeded into thinking that
they were part of this earth-shaking event and wanted to play some role in it. All
you need are four votes to have cert granted. I knew there were four votes for
Bush on any issue. When you ask, why did they take cert? I think they took
certiorari because they wanted to play a role in the outcome. I think that Olson's
argument finally resonated, given the chaotic experience that had occurred over
the past twenty days or so. That was part of it too, the chaos to which the
Democrats contributed, but had no choice in terms of their hunt for votes. [They]
created an atmosphere in which it was easy to get four votes.
P: When they accepted cert and remanded the case back to the Florida Supreme
Court, at that point did you realize that they had made up their minds? If you
look at Scalia's comments early on, it seems pretty clear, at least in his case.
R: I realized it [at] the oral arguments, because the remand comes after that
argument with Olson and Tribe. It was so clear to me, as I said before, about
Kennedy being visibly upset with the way things were going in Florida. I knew
that it was in trouble. There was no question about it.
P: Would you give an opinion on the Florida Supreme Court 4-3 decision to count all
the under-votes? Do you think they were interpreting the law or making law?
R: I thought they were interpreting the law. It's a struggle, there's no single right
answer in these kinds of cases. I didn't think that what they did was violative of
any legal principles, principles of constructing statutes and trying to find a
remedy. They were stuck in a position too, looking for a remedy that might be
workable and meet the federal requirements on top of it all.
P: Do you think, as Justice O'Connor argues later, that when they remanded the
case back to the Florida Supreme Court, they didn't provide a satisfactory
answer as to why they had changed the rules of the election?
R: Yes, I think they kind of side-stepped that. I'm not sure they could have provided
anything that would have satisfied five justices of the Supreme Court, so I'm not
sure it makes much difference. No, they didn't really answer the second time
P: One explanation was, and it seems a logical explanation, they had so much to
deal with in such a short period of time that they may not have focused on that
issue quite to the satisfaction of the United States Supreme Court.
R: Maybe, I don't know what the explanation is. I think that the question you're
posing actually raises a larger issue, and that is that there was certainly a rush to
judgment here that was perhaps unnecessary. If worse came to worse and you
let it go to the Congress and see what they wanted to do with it, maybe that
would have been fine too. I felt like all the lawyering, all the judging being done
in this rapid time, is not the kind of thing that the courts or lawyers really are built
for, but more so the courts. It's pretty extraordinary that you'd have two cases to
the Supreme Court of the United States and to the Supreme Court of Florida in a
period of less than a month, basically. Maybe that has an impact on whether or
not you can rely on the decision-making.
P: David Boies says they were kind of caught in a quandary here. If they had set a
standard, the U.S. Supreme Court would have said they were making law. If
they didn't set a standard, they violated the Fourteenth Amendment. Either way
they went, they were going to lose in the United States Supreme Court.
R: I think they were going to lose, no matter what, as long as Bush was in danger. If
Bush was in danger, then the court was going to save Bush. I don't think there's
any doubt about that. This may not be nice, but I think Kennedy was divided, the
chaos, I think, affected Kennedy. He doesn't like chaos and I thought that he felt
like this had just gotten completely out of hand.
P: Do you think there was a constitutional crisis?
P: Do you think Kennedy did?
R: Probably at that point. In the Supreme Court that morning, people had to get
there at 4:00 in the morning to line up to get in if you didn't have a reserved seat.
I had to work hard to get Burton a reserved seat. Beverly was in line. [Michael]
Carvin [attorney for George W. Bush in 2000 election], who had argued the case
for Bush in the Supreme Court of Florida, was relegated to waiting outside [at]
5:00 in the morning, [in] line to get in for the oral arguments. The clerk, Bill
Souter, had a special package made up for the momentous occasion. I don't
have the card here, but I'll show you the card that they give you so you can walk
in and out if you're at counsel table. He had a special card done with red, with a
seal on it. The whole thing was treated as an extraordinary event. The trouble
with doing that is that instead of addressing it like you would any other case, it
throws everybody a little off balance. I think that's part of the problem. This is no
constitutional crisis. If worse comes to worse, you can't figure it out, it goes to
Congress and they decide what they want to do. Politically, they fight it out and
see where they're going to go. It would have been interesting, it would have
been fun to watch. I think it's kind of bad that the courts got themselves so
deeply embroiled in this. It put a stain in some people's mind on the Supreme
Court of Florida that they were partisan. I thought that the Chief Justice of the
Supreme Court of Florida in the first oral argument, when he made a speech
about, we know this is a momentous case. I thought, what's he doing that for?
Why not just say, here we are, good morning, let's get to work. I think everybody
in those situations kind of got carried away with the case and their own
importance in the process.
P: Chief Justice Charlie Wells [chief justice, Florida Supreme Court, 1994-present]
had a very stinging dissent in the 4-3 decision and argued that it was, in his view,
a constitutional crisis.
R: I think it's all overstated. I just thought it was all hyperbolic. The things that stuck
out in my mind were in the first oral argument, his statement, I didn't care for that.
They had all this high security and all these kinds of rules. Maybe those were
necessary because there were big crowds. The whole thing was turned into
something bigger than just another court case. I think if you're going to be the
judge, you're just going to treat them as they come. Here's another court case,
we'll decide this. It's hard to resist, I guess.
P: They had all the media attention, all the television coverage, everyone from
around the world watching this event. It's difficult not to know you're on center
R: In the Middlebrooks case [on Monday] morning, there was a huge press turnout
on the west side of the courthouse. I went out the east side so I wouldn't have to
be dragged into all that. Did you ever see that Toobin thing? The New Yorker
article, all these people beat me to the cameras. I didn't race that way. I've been
through this kind of stuff before and I just thought that was dopey. When
Dershowitz showed up, I thought, what's he doing here? I think his mother had
friends who had trouble voting in Palm Beach County. People showed up like
Erwin Chemerinsky, who is a wonderful law professor from [the University of
Southern California]. He showed up in Judge LaBarga's courtroom arguing
some arcane point of constitutional law. He flew all the way from California for it.
I couldn't fathom it really. That to me, the most interesting part was not the legal
stuff. I thought the legal stuff here had some interest, but the truth is you can
work these legal concepts in different ways. I thought the more interesting part
was the human dynamics and the personalities that were involved.
P: Do you think the U.S. Supreme Court decision was 5-4 or 7-2? Seven justices
did argue that there were changing standards.
R: I think that you could make the argument that there was support, it was more
than 5-4 because you had a couple of justices who were not happy with the
P: One of the things that Dexter Douglass and David Boies talk about is that they
thought the law in Florida, while chaotic, because there are different standards in
sixty-seven counties, was fair and traditional that the canvassing boards make
their judgment based on the intent of the voter. They used the reasonable man
standard like a jury would do. I think they were offended that the court saw that
R: But it is. It's a dopey standard, looking at these kinds of things. Even the
physical process of hunting for those votes, looking at them, I think underscored
how ridiculous it was. The photographers who took pictures of Judge [Robert]
Rosenberg [Circuit Court judge, appointed during recount by Jeb Bush [Florida
governor, 1999-present] to take Jane Carroll's place on the Broward County
canvassing board] with his big eye. That underscored the fact that this was a
theater of the absurd in many ways. Looking to see what the voter intended,
where he or she punched. The truth was, if they didn't punch it through, it was
voter error. If it had been penetrated and you saw, that's a clear indication of
intent. It seems to me that was the right and the simpler way to go. That might
not have mined enough votes for the Democrats, so they couldn't take the risk
and had to push for these different standards.
P: Why do you think that Judge LaBarga, Judge Lewis, and the Florida Supreme
Court never set a standard?
R: I think they saw the law as allowing this latitude to the canvassing boards. I think
they were trying to be careful about not using the power of the judgeship to
override what seemed to be the common law of Florida and the statutory
concepts. That's why it became the lawyers' duty. If the Democrats had said,
we're going to rise and fall on this: if it's penetrated, count it, it would have made
the count go much more quickly and it would have been much easier and you
wouldn't have had these fights like you had fights. This one yes, this one no.
You see an indentation here. This is a hard call, at the beginning somebody on
the Democratic side would have had to say, this is it, we're going to rise and fall
on this. There won't be any chaos, we're not going to have these scenes where
people are fighting over each of these things and having objections and having to
review it. Once you started with that, it was a joke.
P: Both sides become exceedingly partisan, the Democrats try to speed it up, the
Republicans try to slow it down. Do you see Bush v. Gore in any way setting a
P: It was a one-time decision?
P: Therefore, is it a political decision?
R: Let me tell you, every decision of the Supreme Court is a political decision, really.
People go to their death on 5-4 vote. That's why I couldn't get so exercised
about this. I've seen death cases decided 5-4 and the guy gets electrocuted.
Nobody lost their life in this case. This one, because it involved politics at the
highest level, was more politically-charged than the other cases. What are the
abortion cases? Are those politically-charged? Sure they are. The death
cases? Sure they are. This one was extraordinary. It won't happen again,
probably. If it does happen again, then Bush v. Gore can be dragged out of the
closet and used.
P: Justice Stephen Breyer [U.S. Supreme Court, 1994-present], in his dissent,
proposed that there was still time to remand the case to the Florida Supreme
Court, have them set a standard and count the votes. Was that a feasible
R: Sure, it was a feasible alternative, except it would just prolong the madness. I
think that's what motivated the outcome. The madness which had been played
out twenty-four hours a day on television, which the court was obviously watching
too. This sense, as Justice Wells called it, that there was a constitutional crisis. I
think they just got stampeded into all of this.
P: Alan Dershowitz said that the decision by the Supreme Court was an egregious
error, the single most corrupt decision in Supreme Court history.
R: It's such an exaggeration, it doesn't require a response.
P: Judge Posner said it was not a good legal decision but it was a pragmatic
R: That's closer to the mark.
P: There was a lot of publicity and a perception by some of chaos, and justices
watch television and read newspapers. Do you think having watched that for
thirty days or however long it had been, had some impact on how they ruled?
R: Yes, without a doubt. That's why I point to these specific kinds of things that give
you a sense of how this case was treated differently by the court itself, as an
institution. If you accept that, then it's not so hard to accept the fact that because
it was treated differently, they were a little more prone to a decision based upon
factors that wouldn't generally affect them. Chief Justice Wells [made] the
opening statement about the eyes of the world or something [like that], but he
said something that, as I recall sitting there, I realized [he] was setting a stage,
which is not the usual way that they do it. In the Supreme Court of the United
States, I don't think that the clerk, Mr. Souter, would have done all of this with a
separate package of material. There was a copy of the Constitution,
compliments of the Supreme Court Historical Society. It's all in an envelope
that's used to send things around to the justices with each of their names in a
box and then my name, Joe Klock's name, David Boies, Larry Tribe down there
at the bottom. Once they started treating this thing in that separate and distinct
way, then clearly as an institution, they were treating this in a different way than
most ordinary judging would take place. That leads me to conclude that you've
got to factor that in, in how they came to their decision.
P: Some critics argue that the decision undermined the credibility of both the Florida
Supreme Court and the United States Supreme Court.
R: That's ridiculous. That's just another part of the hyperbole on the other side.
The truth is, it's forgotten. The books have been [written] already, but people
have moved on from that. I don't think it undermined the credibility of either court
for very long. For a week or two, when the pundits were on television yelling and
screaming? Maybe, after that it's forgotten.
P: Do you have any comment on the activities in Seminole and Martin Counties
where the elections supervisors provided assistance to Republicans in putting in
the voter registration number on applications?
R: Yes, there's no question that was bad. The real question is, could the case have
been won? Were you going to disenfranchise voters for that kind of reason?
Gerry Richman [West Palm Beach attorney for Harry Jacobs in his case against
the Seminole County canvassing board] did that case. He's still a firm believer in
it. It's outrageous, [but] I thought that case was doomed too. Another example
of the Democrats kind of thrashing away. By the way, I think that while they tried
to distance themselves from that case, I think the Democrats are the ones that
gave Harry Jacobs [filed case during 2000 election in Florida which asked that all
absentee ballots be thrown out in Seminole County] Gerry Richman. I think they
put that together. I represented Harry Jacobs in lawyer advertising cases. I do
cases now with Gerry Richman. They're great folks, but I don't think they found
one another accidentally. I think the Democrats put them together because they
wanted to use this. On the other hand, they wanted to distance themselves from
it as [Joseph] Lieberman [U.S. Senator from Connecticut, 1989-present;
unsuccessful Democratic vice-presidential candidate, 2000] ultimately did.
P: I understand that Harry Jacobs brought the suit on his own and then he got
support. In the court decisions, one by Judge Nikki Clark [Leon County Circuit
Court] and one by Judge Lewis, they stated that while it was bad judgment and
seemed partisan, there was no remedy, otherwise you would disenfranchise
voters who had not violated the law. Do you agree with those decisions?
R: I think everything has to go toward protecting the vote. This did not undermine
the integrity of the vote. It was a procedural-ministerial kind of thing. It did not
comply with the statutory requirements the way they did it. The bottom line was,
so what? These people knew who they were voting for. If you threw [those
votes] out, these were service people and stuff like that, it wasn't going to play
P: Because of what happened in Martin County, something like 673 Republicans
voted who would not otherwise been able to vote. Bush won by 537. Obviously,
that turns out to be fairly important.
R: It does, but none of them are important if you look at Ralph Nader's votes. The
line I like best was when Bush heard that a vote for Nader was a vote for Bush,
Bush voted for Nader. That really was true. All of this fighting, that was the war,
that was where you were. The Nader votes had been cast. If you're looking for a
villain here, if you're a Gore partisan, the villain is Ralph Nader. He basically
stole the election from Gore. Or the villain is Gore. Gore couldn't carry
Tennessee, Gore couldn't win it big like he should. He won it nationwide by half
a million votes or so.
P: He didn't carry Arkansas.
R: This guy had what looked like the huge advantage: experience, commitment, all
that kind of stuff. He couldn't pull it off.
P: In Martin County and Seminole County, requests for absentee ballots were in
dispute. They were not the ballots themselves, which makes for a little bit
different legal context. Comment if you would on the overseas ballots,
particularly the military ballots. It's now clear in Santa Rosa County and some
other counties with large Armed Forces populations; they were counting ballots
that were signed on the 8th or 9th of November. The law is, they must be signed
and postmarked by the date of the election. They were counting, after the fact,
votes that had been cast or did not comply with an APO [Army Post Office]
address. There were lots of other reasons. All those votes, according to what I
know of Florida law, would be illegal.
R: I think they probably were illegal and probably should have not been counted in
those situations. Were they enough to make a difference? I don't think there
were enough to make a difference, were they?
P: Yes, there were quite a few of them. Part of the issue here is that on both sides
the Republicans start out calling for strict adherence to the rules for certification,
but then with the issue of military votes, they changed. Gore says, count all the
votes, but not the military votes.
R: You didn't expect them to be consistent, did you? It was about winning. It was
about winning. More so for Bush than for Gore, apparently from what I read
about how people were not quite as committed to Gore as they were to Bush. It
was about winning.
P: Do you mean in a personal sense?
R: Yes. The right way to have done this would have been to, at the beginning, sit
down, the two of them or their seconds, [say,] we're in a strange situation here,
let's see if we can come to some agreement under Florida law [as to] how these
votes should be counted and whatever happens, happens and we'll go from
there. That would have been one way to do it.
P: Early on, Gore publically said, we'll count all the votes and let it go. Bush turned
that down. What would have happened if they had adhered to that?
R: Bush would have won.
P: You never know.
R: It depends on how you count the votes. That was the problem, how you counted
P: It turns out with the New York Times vote that there were quite a few over-votes
on which you could determine voter intent. They might circle Gore and write in
Gore. It's very clear they intended to vote for Gore or Bush. Those votes were
never counted. The Florida Supreme Court just said to count the under-votes,
not the over-votes, and there were some votes in the over-votes. I presume that
if you counted and counted and counted, you could still be counting.
R: That's right. I don't think anybody was ever satisfied exactly with what the
number was going to be at the end. It comes back to voter error. Again, this
comes back to Gore. Gore's people wanted a large turnout, they knew that in
Palm Beach County you've got an elderly population. They had seen the ballot.
While they didn't see it with the holes on it, because the sample ballot doesn't
have the holes, these are people that have been around a long time. When you
see the ballot with names on both sides and you know they're going to be bound
in the middle, there are going to be holes. If you're thinking about it, you might
say this might be a problem. [Theresa LePore] sent them out in October. It was
in the newspaper, of course, big full-page thing in October. None of the Gore
people ever said anything about a potential problem with this ballot. [That is]
number one. Number two is they knew they were going to get a large turnout
among the elderly. If there's voter error, it was in that area of the population,
[the] elderly, maybe minority, and they were seeking a big turnout there too. You
go and you send your people out with some voter education. Say, here's what
this ballot is going to look like. We don't want you to make a mistake and you
need to make sure that you're pushing the right thing. There's a potential here
for some confusion. They never did that. I think at every step of the way, if you
stand back and look at this, the answer is, the Democrats didn't earn the right to
win. I don't want to say they deserved to lose, because that's not so. They didn't
earn the right to win. Is that Monday morning quarterbacking? To some extent it
is. The truth was, you knew the election in Florida was in Palm Beach and
Broward Counties. Everybody said that at the beginning. If Gore could win
Broward County by 200,000 votes, he'd win Florida. The whole focus was right
here. We used to talk about that before the election. This was ground zero. It
turns out that Palm Beach was ground zero, but we weren't far off. If these
counties are ground zero and you're thinking about this, then you make sure that
the vote in these counties is done the right way. It was not the first time, because
[in] the last election the vote in Palm Beach County and in Broward County is
what carried it. When Janet Reno runs, if she's going to run, these are the
counties that she needs. You get a big enough lead in these counties, it takes
care of Santa Rosa and these other counties. They become meaningless.
P: It's clear that's what happened in Duval County. They had more under- and
over-votes than they did in Palm Beach County. Partly because in the African-
American community, many of them were first-time voters and had not been
effectively educated on how to vote. How did the Broward County canvassing
board do as compared to the Palm Beach County canvassing board? At least
they finished their vote and stayed through Thanksgiving.
R: Yes, they did. That was an issue, taking the day off for Thanksgiving. Here it
was a more organized, cohesive unit. Although Jane Carroll [supervisor of
elections, Broward County; member, Broward County canvassing board, quit
during recount] walked away, that was a strange moment too. Who was the
county commission canvassing board member here?
P: Sue Gunzburger [member, Broward County canvassing board].
R: Yes, Sue Gunzburger. She's a very strong Democrat. This is a very strong
Democratic county. I think all of them were kind of closer, on the same page.
The County Attorney's Office too. I think they all worked carefully together. In
Palm Beach County, for example, there were some people who thought that
Denise Dytrych [county attorney, Palm Beach County], because she's
Republican, was really a Bush supporter and would get in the way. I think there
was a sense in Palm Beach County among some quarters that there were
politics being played between the county attorney and Judge Burton and Carol
Roberts. There seemed to be a lot more, I don't want to say hostility, but distrust
in the Palm Beach County situation than there was in the canvassing board and
the county attorney's office here.
P: Carol Roberts had requested that she be on the canvassing board. There was
some opposition to that, I think.
R: That I didn't know.
P: When we look back at the 2000 presidential election, I have two questions. What
long-term impact will it have on the state of Florida? Secondly, what will be its
importance in American history?
R: I don't think it will have any great importance in American history other than what
importance it might have if Bush, being president, does well or does poorly.
That's to be judged by some other standard. In terms of the election itself, I think
it's one of those unique situations which will be the subject of 10,000 Ph.D.
dissertations and will be fun to think about. I don't think it will have any lasting
impact as an election. I think it will have an impact in terms of trying to straighten
out the election process and changing some laws and making sure voters are
better educated, [and] making sure that votes are able to be counted in more
effective ways. The whole electoral process was pretty primitive. It probably
would have stayed that way for a lot longer had we not had this incident. That's
the way we kind of govern in America. There's an incident and now, okay, we
have to solve all the problems. September 11th [terrorist attacks on America]
happens and you change all these security rules and everything else. We kind of
legislate by anecdote. If there's an anecdote, it prompts legislation. It's not
reflective, long-range thinking. The same thing I think happens in the electoral
process. I always thought that about punch-cards, even when I voted, it is not
something that you're prepared for. You do it once every two years or four years.
Every time you do it, you kind of have to stop and think. It's not the usual kind of
activity you engage in. Right away, it's charged with some difficulties, even
among people who pay attention. Do I ever look at the back of my thing to make
sure all the chads are out? No, I never would. Now would I? I guess I would
now. Again, I think that's the only impact that it has.
P: Do you think reforms, with the new machines and provisional ballots, are going to
improve the quality of voting?
R: I don't know. I think they'll have problems with touch-screens. Not everybody is
tuned in to be able to do that. It will be frightening for some people.
P: You can't over-vote on a touch screen.
R: That's true. I think it can help. Now there's a dispute about the machines and
whether or not they are as promised. I think here in Broward County they sent
back some of the machines they didn't like, the machines that were sent down.
There's always going to be potential for mistakes and errors.
P: How accurate is hand-recounting?
R: I guess it can be pretty accurate if you have a lot of time. If you take a couple of
months to go through each of these things carefully. I've never been on the
counting side of it.
P: Let me go back to the impact on Florida. Obviously, the press was rather critical.
They made jokes about Flori-duh and made it appear that the state was
incompetent, unable to vote. Do you think that has any lasting impact?
R: Probably a good impact. It doesn't make any difference what they say about you
as long as they spell your name right. I don't think it has any. Were we the butt
of all kinds of jokes? Jay Leno [NBC late-night show host], David Letterman
[CBS late-night show host], all that? Yes. But you know I think the American
public is pretty tolerant. They move away from things. They don't hold grudges
for a long time. I don't think it will have any real negative impact. Does it
distinguish us from the crowd? Yes. For a good reason? You know, it's an
amusing reason. The elderly people who made the mistake, it's an
understandable mistake. Yet, it's their mistake. People make fun of them? Yes.
Do they deserve to be made fun of? Probably not. It was built-in. You had to
see it coming.
P: There were many other states with the same problems. Georgia had more over-
votes and under-votes than the state of Florida did. We just happened to be in
R: That's right, we were the decisive state.
P: What impact will it have on Governor Jeb Bush and Florida politics?
R: I think it will have an impact there. He is in the spotlight because of his brother
and [what] his brother does can reflect on him in a positive or a negative way. I
think it highlights Jeb Bush more than it would have had [George W. Bush] not
been elected president by virtue of the vote in Florida. For those who are
ultimately cynical and believe the whole thing is corrupt, then their view is that
Jeb Bush made his brother the president. I don't buy that. I'm more amused by
this. This doesn't trigger any kind of cynical outrage in me. The stuff that
Dershowitz and these others say is too hyperbolic for me. Is it a life-and-death
matter? You could make it that way if you think that the presidency has [an]
effect on other things. My first reaction to the September 11th [events] was, if
Gore had been president, looking at how Gore handled the war for his vote, I
would have been scared to death having Gore president in a situation where he
needed to conduct a real war. My overriding reaction is disappointment in the
Democrats. I'm a Democrat, I voted for Gore and I was disappointed in the way
that it played out. Not that it was anybody's fault. They were in uncharted territory
too. They were, as I've said, hunting for votes. Mitch Berger, did he have control
of the situation? No. Did Christopher have control of the situation? No. David
[Boies] didn't have control of the political situation. On the morning of the first
Supreme Court of Florida argument, I was in the hotel in Tallahassee, it used to
be the Hilton, the one next to the Governor's Inn. He was doing a 60 Minutes
[television show] interview just before the oral argument. That kind of struck me
as strange. You've got a big oral argument, it's a big case. The 60 Minutes
interview, what's that for? They were making him do the PR [public relations]
function in addition to be the lawyer. I don't think you can always handle both of
those things well.
P: Is there anything you would like to discuss we haven't talked about?
R: I don't think so. I put this out of my mind until you came back and asked me to
think about it. I think, from my vantage point, because I was not a partisan from
one side or the other, it was great fun. The way I had a cat-bird seat to watch it
all unfold. I could be judgmental about the quality of the lawyering and the
arguments that were being made. If there was a star, I would say Barry Richard
[attorney for George W. Bush in 2000 election] probably was the star for me. I
thought Barry just did a terrific job.
P: On that note, we'll end the interview.
[End of the interview.]