Title: Interview with Mitchell Berger
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00067379/00001
 Material Information
Title: Interview with Mitchell Berger
Physical Description: Book
Language: English
Publication Date: March 5, 2002
Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
 Record Information
Bibliographic ID: UF00067379
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 21

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Full Text


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and the Samuel Proctor Oral History Program on
behalf of the Board of Trustees of the University of

Copyright, 2005, University of Florida.
All rights, reserved.

This oral history may be used for research,
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FEP 21
Mitchell Berger

Mitchell Berger begins by describing his legal background and his connection to Al Gore. He
was with Gore's campaign from the beginning, as senior advisor to the campaign and he
describes the advice he gave to Gore in regard to Ralph Nader, Elian Gonzalez and the Cuban
vote and the economy. He also talks about the impact of adding Joe Lieberman to the ticket (1-
5). He recounts his actions and who he spoke with on election day, including discussions that
took place regarding the butterfly ballot (5-7). Berger describes the decision that was made to
stay in the protest phase and whether they should have moved to the contest phase sooner. He
also discusses the decision for Bill Daley and Warren Christopher to represent Gore. He talks
about the public statements of Jim Baker and Christopher. He mentions Ron Klain's role and
recounts the first meeting that group had to decide which counties to protest (8-13). Berger
believes the butterfly ballot was illegal and tells why it was not initially protested before the
election (13-14). He discusses the conflicting opinions of Katherine Harris and Bob Butterworth
regarding whether the Palm Beach County Canvassing Board could continue counting. He
continues talking about the general strategy and organization of attorneys and which counties to
focus on. He mentions Carol Roberts and Judge Charles Burton and the standards they used for
hand-counting votes (14-18). He gives his thoughts on the actions of Katherine Harris and Bob
Butterworth and Mac Stipanovich. He discusses the safe harbor date and the standard for
counting votes (18-21).

Berger recalls the atmosphere in Palm Beach County and assess the job that the canvassing
board did. He then analyzes the decisions made by Judge Donald Middlebrooks and Judge Terry
Lewis, as well as those made by the Florida and U.S. Supreme Courts (21-26). Berger gives his
opinions regarding the Florida House of Representatives vote to seat the Bush electors and the
discussions regarding whether to subpoena Katherine Harris (26-28). He recalls the contacts
made with Michael Lavelle regarding whether dimpled ballots had been counted as votes in a
previous election. He then describes the decisions and the process around moving to the contest
phase of the election (29-32). He talks about Judge Sanders Sauls's ruling and the 4-3 Florida
Supreme Court decision and gives his thoughts on whether counting over-votes would have
made a difference (32-36). Berger analyzes the U.S. Supreme Court decision and whether it will
stand as precedent (36-39). He briefly mentions the military ballot issue and again, the actions of
the Florida Supreme Court. He discusses the actions of the Seminole and Martin County
supervisors of elections (39-42). He believes the Republicans controlled public opinion and
discusses Jim Baker, the media and the seeming difference in dedication to the candidates (43-
45). The interview concludes with a discussion on the long-term impact of the election and the
impact it had on Berger's life (45-47).

FEP 21
Interviewee: Mitchell Berger
Interviewer: Julian Pleasants
Date: March 5, 2002

P: This is Julian Pleasants. I am in Fort Lauderdale, Florida, talking with Mitch
Berger. It's March 5, 2002. Would you just briefly give me the background on
your legal career?

B: Well, I'm a lawyer. I practice in Fort Lauderdale. I founded a law firm that has
offices in Miami-Dade County, Fort Lauderdale and in Leon County, Tallahassee,
Florida. The law firm is seventeen years old and I founded it when I moved from
Chattanooga, Tennessee, in 1985.

P: Discuss your relationship with Al Gore [unsuccessful Democratic presidential
candidate, 2000; U.S. Vice President, 1993-2001; U.S. Senator from Tennessee,
1985-1993; U.S. Representative from Tennessee, 1977-1985] prior to the year

B: He's an old and dear friend. We've been friends for the better part of twenty
years at this point in time. We've grown to know each other better. We're

P: You knew him initially when he was a congressman.

B: Yes.

P: Did he had some dealings with your father's development business?

B: No, I was active in politics as a young man and so was he. He was obviously a
congressperson at the time. He came around. I knew him through various state
party functions, but [was] not really friendly with him. He came around and he
decided to run for the United States Senate for Howard Baker's [U.S. Senator
from Tennessee, 1967-1985] seat. I became friendly with [Gore] and very active
in that first Senate campaign, when he won in 1984.

P: You also helped him in his 1988 presidential run.

B: 1988, the 1990 Senate run, the 1992 vice-presidential run, the 1996, and 2000. I
have all the battle wounds.

P: When did he first contact you about participating in the 2000 election?

B: I think that with respect to the 2000 election, I was involved with it from the
embryonic moments. I think that the first time that Al Gore thought about running

FEP 21
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for president in the year 2000 [was] when he was asked to be Clinton's running
mate in 1992. Even in that decision, certainly he wasn't an announced
candidate, that had to be part of his thinking going forward. As far as the
moment that the 2000 campaign began, I did the first event for him outside of
Washington in March of 1999 in Miami. It was a week after the impeachment
trial ended, so it was a very difficult way to start a campaign.

P: Was that was a fund-raiser?

B: Yes, it was a fund-raiser. In terms of the planning and the efforts toward
planning a presidential run. [I was involved] as early as you can imagine.

P: What were your activities during the campaign of 2000?

B: I was senior advisor to the campaign and I had that as an official title. I ended up
being the chairman of the Federal Victory Fund for the Democratic National
Committee, which was its federal money fund-raising arm.

P: What kind of advice did you give Gore about his campaign strategy?

B: I was often involved with how to discuss the environmental issues given the
[Ralph] Nader [Green Party Presidential Candidate, 2000; activist; author, Unsafe
at Any Speed] insurgency, for lack of a better word. It was a difficult problem,
because there was nobody in established national politics who had done more for
the environmental community than Al Gore. There was a part of the
environmental interest-group community that was giving him no credit for it. It
became a difficult problem. For instance, here in Florida, since this is a Florida
history project, Al Gore became the person who was going to drill off-shore. Of
course, that was being fed by the [George W.] Bush [U.S. President, 2001-
present; Texas governor, 1995-2001] campaign. Indeed, Jeb Bush [Florida
governor, 1999-present] was the one who said Al Gore was going to drill off-
shore in order to have the Nader community up in arms. [Gore was for a ban.
Bush indicated he was for a ban, but broke this promise within his first year in
office.] For a moment of personal privilege, obviously the first thing that the Bush-
[Dick] Cheney [Vice-President of the U.S., 2001-present; Secretary of Defense
under President George Bush, 1989-1993] people did when they got into office
was talk about drilling off-shore in Florida. That happens in politics sometimes.
[As a result of] the disinformation that was being fed on things like offshore
drilling in Florida [and] the Homestead Air Force base issue, at the end of the day
[there] ended up being 75,000 or 70,000 votes for Nader in the state. Certainly
far more than 535.

P: There was an old joke that George Bush said that he heard a vote for Nader was

FEP 21
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a vote for Bush, so he voted for Nader.
B: Right. That was definitely a large part of the issues that I was helping to try [to]
minimize. The Nader vote was ten percent of the vote in critical states as of
October 1, 2000, in Wisconsin and Michigan, Washington and Oregon. There
was a lot of criticism of Gore for the campaign themes. At the same time, without
those four states, Gore could not possibly have been electorally successful.
Nader was preventing him from victory in those four states. All four of those
states ended up going for Gore. The Nader vote collapsed. Oftentimes analysts
like our dear friend Steve Craig [professor of political science, University of
Florida], although I don't think Steve is one of them, look at the end of the
election and say, why did you do that? As opposed to looking at an election in a
fluid context of how you [obtained the result of] Nader only getting one percent of
the vote. Obviously, the campaign was successful in diminishing his
effectiveness down to one percent.

P: What did you advise him on 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] incident?

B: On Elian Gonzalez, the specifics of my advice belong to him. Clearly, I think that
his position on Elian, saying that the courts of Florida should make the decision
as to the custody issue with Elian Gonzalez, was what he had said and what he
had said consistently as the Miami Herald said throughout the affair.
Unfortunately, he was perceived as being inconsistent in the affair, which he was
not. He said that consistently. I think the Herald gave him credit for that. Again,
the unfortunate thing from my point of view in all that is [that] there is only one
person [who] could have kept Elian Gonzalez in this country and his name is Jeb
Bush. If the state of Florida had interceded in the circuit court action in Dade
County and said that the child needed to become a ward of the state, the United
States government would have had a more difficult time. The state of Florida
never interceded and there was a twenty-five page decision by the circuit court
judge in the state court saying that, since there's no parent and there's no one in
the chain of custody asking to keep the child, then the only one that can do it is
the state of Florida. You asked a direct question but I gave you a long answer.
Suffice it to say that Gore's position, as [is] true of Joe Lieberman, [U.S. Senator
from Connecticut, 1989-present; unsuccessful Democratic vice-presidential
candidate, 2000], as [is] true of other Democrats, about the Castro regime has
always been very consistent. While it was inconsistent with [Bill] Clinton [U.S.
President, 1993-2001] or [Janet] Reno [U.S. Attorney General, 1993-2001], it
was consistent with Gore and [Bob] Graham [U.S. Senator from Florida, 1987-
present; Florida governor, 1979-1987].

P: Although Gore carried Dade County, it still hurt him with the Cuban vote.

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B: It hurt him very dearly with the Cuban vote. [The Cuban community] perceived
what Janet Reno and Bill Clinton did more than [simply] moving the child out,
[but] the way and manner in which they moved the child out as a direct affront
to the integrity of the community.

P: Did you ever talk with Al Gore about using Bill Clinton more during the campaign,
particularly in Arkansas?

B: No, I never talked to Gore directly about that. Again, anything you ask me about
what I talked to Gore about in a specific nature, I'm going to be very deferential to
Gore on that. In terms of what other people said to me about using Clinton
directly in Florida, I will tell you point-blank that he better not bring him in.

P: What was the reason for that?

B: The reason was they would be happy to have him fund-raise for them, but they
didn't want [him] to campaign [for Gore].

P: Because of the impeachment stigma?

B: Impeachment issues, the Reno and Elian issues.

P: It just reminds them that Gore is Vice-President of the Clinton administration.

B: It was mostly impeachment, but there was also the Elian invasion issues.

P: There was some criticism that Gore didn't emphasize the good economy enough.
Did you think that was a failure in his campaign strategy?

B: I will tell you this. This is an observation, not a comment on what I said. The
reason why Al Gore even won the election in the popular vote by 500,000 votes
was because he distanced himself from Bill Clinton, not for any other reason. As
to whether or not Clinton could have helped in Arkansas in the end or helped
somewhere else in the end, that's a static analysis, not a fluid analysis as to an
overall strategy. Al Gore was behind George Bush at the end of the Republican
convention by twenty-two points. When he picked Joe Lieberman as his running
mate, he was seen through a different lens. That's all vice-presidential
candidates can do for a presidential candidate. It's clear that the data, and Steve
Craig could help you with this, helped to show Gore as what he used to be
perceived as, someone with integrity and intelligence, as opposed to someone
who made excuses for Bill Clinton. Joe Lieberman enabled that to occur
because he was the Democrat who criticized Bill Clinton. He's the man who

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called Clinton for what he was in the minds of the American public. Every time Al
Gore came close to saying a good thing about Bill Clinton, we lost the white
women. They swung over to George Bush. Every time he ran more in what I'll
call the Joe Lieberman integrity mold, we gained that vote back. If you look at
the vote between September and October, every time Gore got painted with
Clinton, we lost the swing vote, which was the white suburban woman.

P: That was really the key vote.

B: That was the key vote in this election, that was the battleground.

P: How much did Lieberman help the ticket in Florida?

B: I think a great deal. Again, not so much for the ethnic reasons, which I think
helped to some extent, but on the 1-4 [Interstate 4] corridor and down here in
south Florida, Lieberman inoculated Gore from Clinton. He was a flu shot. It
was like getting a good flu shot, especially in Dade County. The reason we didn't
get slaughtered in Dade County was that Joe Lieberman was embraced by the
Cuban community. Key interest groups like the Cuban-American National
Foundation remained neutral and did not endorse in the race or did not have their
members endorse because of Joe Lieberman, notwithstanding Elian. We still got
hurt by it. We would have gotten slaughtered by it in the absence of that kind of

P: On voting day, I think it becomes pretty clear to many Democrats that there are
some major issues in the vote-counting. When did you realize that this was
going to be a problematic election?

B: 10:00 in the morning.

P: That early?

B: There was a letter that went out from Bobby Brochin a little-reported letter, but
it is in some of the texts. By 11:30, Bobby Brochin had written a letter to
[Theresa] LePore [supervisor of elections, Palm Beach County] saying, your
ballot is defective, please do something to warn the people. She refused to do it.
At 3:30 or 4:00, we wrote another letter. Bobby was acting as counsel to the
party. She finally started to warn people at 3:00 or 4:00 in the afternoon. At 6:50
that evening, I was deciding whether or not to go to Nashville or to have an
injunction filed. The Holland & Knight [law] office of Palm Beach County was
going to do it, or certain individuals in the Holland & Knight office. Palm Beach
was going to do it. I can get you the name, it escapes me [Michael McAuliffe].


FEP 21
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P: David Cardwell [attorney, CNN elections analyst] was one, I believe, at that time.
I'm sure you probably talked to Chesterfield Smith [President of the American
Bar Association, 1973-1974; President of the Florida Bar Association, 1964-

B: No, did not speak to Chesterfield, I spoke to just people up there. Chesterfield
and Bill McBride [attorney, Holland & Knight law firm, candidate for Florida
governor, 2002], on November 9 decided not to play.

P: They turned it down.

B: Because of conflict issues, Bill McBride specifically was the one I spoke to, said
we can't do this. We can't play. They left the field of battle.

P: In the end, you chose to fly to Nashville. Is that correct?

B: Yes, I was on the phone with Charles Burson [chief of staff for Vice-President
Gore, 1999-2001; chief counsel to Vice-President Gore, 1997-1999; former
Attorney General for the state of Tennessee], who is the Vice-President's chief of
staff; Joe Sandier, who is the general counsel of the Democratic National
Committee and Lynn Utrecht, who is a special counsel of the campaign, [asking
whether] I should stay or go. They said, there's nothing I can do and certainly we
can't enjoin to keep the polls open, so go. When I was on the plane to Nashville,
I heard we won the election. Can you imagine? I kept phoning Nick Baldick and
others. We won. I get off the plane, I found out what happened in Florida. My
daughter is a student at Vanderbilt. I go pick her up in her dorm and I don't know
what to do right now. Suffice [it] to say within two or three hours, I was flying
back to Florida. Not on Recount 1, but on a private plane. Michael Adler flew me
back home to south Florida. We didn't know what was going on down here, so
some of us came back down, namely yours truly, to see what was going on here.
By November 8, the next [day], like 3:00 or 4:00 in the afternoon, I'd been up for
thirty hours, [I] was back in Tallahassee.

P: Did you confer with Gore at all in Nashville?

B: No. The only thing I did in Nashville, I was told that and I don't remember this, I
was screaming over my cell-phone to Peter Knight, who is Gore's dear friend,
who [was] in with Gore, because I got there late, saying, don't let him come out.
Something really screwy is going on in Florida, don't let him come out [to
concede]. So I was told. I was one of the ones who told them to tackle him at
the door on that. The butterfly ballot was not the only the thing that was screwy
that day. Here in Broward County and Dade County, people were being turned
away from the polls. The Broward County supervisor of elections, I tried to get

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her on the phone two or three times. I got her lawyer, Sam Gorin, and said,
Sam, they're turning people away. I've done this a long time, but that seems to
have been part-and-parcel of the purge that occurred between August and
November, the people who had voted in August in the primary are now not being
allowed to vote. That was definitely registered that day. This is not made up
afterwards, none of this was made up afterwards. It was an incredibly bad day.
You can get those letters [from Brochin to LePore], by the way.

P: I would like to see those, yes.

B: I'll find them, but I don't have them immediately on me.

P: That would be great. There was an attorney named Miller who wanted to file a
suit against Theresa LePore. At this juncture, you wanted that dismissed, you
didn't want that particular case to go forth.

B: That was after the election.

P: Yes, that's what I mean.

B: You can read my law review article. All those butterfly-ballot cases that were
filed in the protest phase were filed at the wrong time. In my opinion, that was
the greatest disservice done to Gore-Lieberman, filing those cases at that time.
After a moment to reflect and understand the election law, certainly I didn't
understand on November 7 in terms of protests and contests, [but] those cases
are contest cases, they can't be filed until you have a certified winner or loser.
Gore got accused of filing all these lawsuits even though he didn't authorize any
of them.

P: I guess no one authorized it, except for individuals.

B: Individuals, right. They were filed in the wrong court at the wrong time. They
had the disadvantage of having Al Gore being accused of filing all these lawsuits.
For the first seventy-two hours after this, we're running around telling these
private plaintiffs [to] please let us control our own destiny. Don't do this, you're
not doing any good by doing this except having Al Gore accused of being
litigious, which he wasn't.

P: I think you mentioned earlier that Al Gore never sued anybody.

B: Al Gore never sued anybody, but it seemed like he did, because we had all these
lawyers and private plaintiffs out there doing this. There are some reports, and
this is absolutely true, of me having people like Warren Christopher [U.S.

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Secretary of State, 1993; Deputy Secretary of State, 1977-1981; successfully
negotiated the release of the 52 American hostages held in Iran] and Bill Daley
[campaign manager for Al Gore in 2000 election] call lawyers at the courthouse
steps, saying, don't file this lawsuit, you're not helping us. Because they were
not helping us. They were filed at the wrong time by the wrong people.

P: Those were eventually withdrawn, is that correct?
B: Some of them were and one was not. The [Andre] Fladell lawsuit [lawsuit
challenging legality of Palm Beach butterfly ballot and requesting a re-vote] was
litigated all the way to the Florida Supreme Court and they lost. They lost
because it was filed at the wrong time, in the wrong place, and it gave the Florida
Supreme Court, I want to use my words judiciously, a convenient excuse to get
rid of the most important case.

P: You wanted to stay in the protest phase, correct?

B: We wanted to stay in the protest phase because [it was] a great desire by Gore -
I think this is a public desire, so I don't think I'm saying anything that was said
confidentially not to contest the presidency. To him that was very important.

P: This is in the specific legal term, not to move to the contest, correct?

B: Yes, it's also more than a legal term, it means that you have a certified winner
and you're saying that that certified winner did not win legitimately. The protest
phase of the election, you're saying that the votes weren't yet counted. It's a
nuance, but a very important nuance, which Gore felt very, very strongly about.
To contest a certified winner is something that the United States shouldn't be
going through, or he felt shouldn't be going through. The Monday after the
election, after we explained to Gore the rules that the lawyers now understood,
he got up, he made a speech to the nation. He offered to fly to Austin, Texas,
and to make an agreement with George Bush about how to count all the votes.
There was no procedure in Florida election law to count all the votes in the
protest phase of the election except to ask for sixty-seven counties [to recount].

P: They all had to be done individually.

B: [This] is something that none of these commentators want to accept. You have
to ask sixty-seven counties to go through a procedure as to whether or not they
want to recount the votes by hand. Our fear, politically, was if we asked sixty-
seven counties to do that, we would lose in fifty of them.

P: Because Bush did carry something like fifty-one of the counties.


FEP 21
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B: Right, we would lose in fifty or fifty-one of them and the Bush campaign, which
was a very effective campaign, would spin this, for lack of a better word, [to say]
nobody wants a recount. We were losing in all of these counties. That's one of
the other big misnomers. Gore very much wanted a statewide recount. The only
way it could have been done was by an agreement. In a civil democracy under
these circumstances, I don't know if Gore would have agreed to it, but I would
have hoped he would have agreed to it under these circumstances, and honestly
I think he would have. But Bush did not.
P: It certainly wasn't in Bush's interest to do so.

B: The question is whether or not it was in the nation's interest to do so. I'm not
trying to criticize George Bush, but almost every move that Gore made here, it
was not just whether or not it was in his interest, but whether or not it was in the
nation's interest. I don't want to be an apologist for him, but that was definitely
always part of the calculus.

P: In retrospect, do you wish that you had gone to the contest earlier? Dexter
Douglass [attorney for Al Gore in 2000 election] was advocating that, because it
would have eliminated all of these counting problems in Palm Beach County and
the counts would have been done by judges.

B: I know Dexter's position and it's certainly a legitimate position, however, it's clear
that the only time we got any counting done at all was during the protest phase.
The counting during the contest phase was stopped by the United States
Supreme Court. According to the United States Supreme Court, the counting
during the protest phase was constitutional and the counting during the contest
phase was not constitutional. I can't justify that decision, but in retrospect, it's
apparent that no matter what strategy we pursued, the United States Supreme
Court was not going to let these votes get counted. I know that's a harsh thing to
say, but that's pretty apparent.

P: Were you at the November 9 meeting in Tallahassee with Bill Daley and Warren
Christopher and Ron Klain [chief of staff to Vice-President Al Gore; head of legal
operation for Al Gore in 2000 election]?

B: Sure.

P: Would you tell me, why in your view, Gore picked Daley and Christopher to
represent him?

B: Daley is picked because he was the campaign manager. I don't know how
Warren Christopher got necessarily involved at the first stages. I just know he
was there. I know Warren Christopher is the respected Democratic father-figure

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Page 10

in the country. This is speculation, but it's informed speculation, [but] I would
imagine it's because Gore's view was [that] he wanted the nation to know that
this was going to be a dignified event. We were in an automatic recount which
Gore understood [and] forty counties or forty-some counties did not do that
automatic recount [and have not] to this day.

P: What they did was merely check the tally, they didn't actually recount.

B: Right. Unfortunately, it seems they were given that advice by our [Florida]
Secretary of State's [Katherine Harris] office, which is very unfortunate.

P: I have talked to a lot of elections supervisors and there's clearly a lot of confusion
about it, because some did the recount and some didn't.

B: The spin, and that's the only word I can use for it, of Jim Baker [U.S. Secretary of
State, 1989-1992; Campaign Manager for President George Bush, 1988] getting
up and saying these votes have been counted and recounted and recounted. To
this day, they haven't been. That was very effective propaganda.

P: Maybe Warren Christopher was an alternative to Jim Baker. Jim Baker had been
Secretary of State.

B: Jim Baker was a response to Warren Christopher because Warren was there
first. Warren Christopher would not let us serve Katherine Harris [Florida
Secretary of State, 1998-present] with subpoenas. He would not let us do any of
that. As far as he was concerned that was not what this was going to be. We
weren't allowed to recuse judges who we'd run campaigns against.

P: Judge Sanders Sauls [Leon County Circuit Court].

B: [It] is a normal understanding that that judge won't sit on your case. They
recused six or seven judges statewide.

P: Like Judge Nikki Clark [Leon County Circuit Court]. They tried to recuse her.

B: They recused Miller down here, they recused a judge in Dade County, they
recused five or six in Palm Beach County. We were told, you can't do that, by
Christopher and Gore. You can not do those things. That's public record.
You're not allowed to do those things. We are not going to let the nation have
any more distrust of their judicial system, of their elected officials. We were told
things like that. Do not do that.

P: Some analysts say that's why the Republicans won. They were willing to fight

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and win at all costs and that Gore was more concerned with public relations,
shall we say?

B: I don't think public relations is the right word. Gore was concerned with the
institutions and the integrity of the institutions and the long-standing importance
that these institutions only work if they have the trust and the goodwill of the
people. They get torn down if no one respects them. It wasn't a public relations
move. As I said to you, he had one view of what he needed to do and one view
of what the nation needed, at all times. That was clear from Christopher and
Gore at all times. We're not going to do that. How come? That will lessen the
trust of the people in that institution.

P: What was Ron Klain's job during all of these activities?

B: Everything. Ron Klain ended up doing everything. It was clear that Baker was
taking the gloves off in this. When a court made a decision against them, Baker
tore the court apart. Christopher wouldn't do any of that. Klain had to respond to
some of that because Christopher wouldn't. If it went un-responded to, the
integrity of what we were doing would have been discounted.

P: Was Klain sort of the intermediary between this group and Gore?

B: Yes, certainly we all spoke to Gore during this. Ron was the direct intermediary
most of the time.

P: What was discussed at that first meeting with Christopher and Daley and you and
Klain? Chris Sauter [attorney for Al Gore in 2000 election] was there.

B: The first meeting was actually November 8. Klain was there, Sauter was there,
[Jack] Young [attorney for Al Gore in 2000 election] was there, Bob Butterworth
[Attorney General of Florida, 1986-present] ambled over. This was in some
deserted shopping center before we got to the Governor's Inn. I want to say that
Christopher and Daley were not yet there. The discussion was about whether or
not to begin recounts over and above the mandatory, statutory machine
[recounts], asking for these hand recounts. Daley was there, either there or on
the phone, and he was very much against beginning these hand recounts. I
have somewhat of a temper at times and I was saying, you have to do hand
recounts. It's clear to me, it was clear that we already had some preliminary
indications. We had an 11,000 vote discrepancy in Volusia County on the
machine recount. How could you not count that by hand? That's how Volusia
County got picked. There was an 11,000 vote discrepancy. In Broward County, I
don't remember the numbers, but it was an enormous statistical difference
between people who'd voted down-ballot and voted for the presidency. There's

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something wrong there. I said, how could you not count these by hand?
Something is not right. Sauter and Young were pointing out that Broward County
is a punch-card [ballot] county and some of these other counties are oval [fill-in
the bubble ballot] counties. The punch-card counties have a historical problem
and we ought to be looking at those counties, if nothing else. Sauter definitely
wanted to do a statewide recount, as has been said. Klain correctly said, and he
is a really quick study, we got sixty-seven counties, what are the chances of all
sixty-seven counties saying, okay? If that's the case, then we'll do it. I said,
that's slim and none because most of these counties will be controlled by
Republican supervisors. It ain't going to happen.

P: How did you decide on the four counties to protest? You protested in Dade,
Broward, Palm Beach and Volusia.

B: Volusia was easy. Volusia, there was an 11,000 vote difference in the machine
recounts. Something is clearly wrong in Volusia County. Broward and Palm
Beach were also easy. The common theme here is we picked four Democratic
counties. I'm not going to tell you that wasn't part of the thinking. The larger
thinking, or part of the thinking, was the discrepancy between the down-ballot
votes and the votes for presidency.

P: Also, there were huge numbers of votes.

B: Huge numbers of votes. There are three or four factors. First, the discrepancies.
This is where a lot of the votes were. We certainly in retrospect would have
loved to have done Duval [County], which we now understand to be a punch-card
county and Hillsborough to be a punch-card county. Gore would have preferred
to do the whole state. He made a speech saying that, so anyone who says that
he didn't want to do the whole state just is missing that in my view. He re-offered
to do it after we won, which is another little-noted historical fact. If you look a
week-and-a-half later, after we won in the Florida Supreme Court, he again
renewed his offer to Bush. To silence. Answering your direct question, the
amount of votes, the numbers of votes, the butterfly ballot certainly had
something to do with it. We had to make this decision in seventy-two hours
under our election law. This is not like we had a whole computer system back
there. We didn't even know how the law was going to be applied, and as it
turned out, we made up most of the law through the court system as we went
along. All of these things had something to do with it. I think a primary factor
though, for Broward, Palm Beach and Dade, was this punch card [ballot] that we
are now understanding. In forty-three or forty-five, the optical scanners we knew
were pretty accurate. As it turns out, it seems that there were optical scanner
problems in seven or eight counties where, this is something I would love for
history to find out, in the first seventy-two hours, during the machine recounts,

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certain counties started doing hand recounts. Butterworth found out about it,
wrote a letter about it, which is cited in Sanders Sauls' opinion. In certain
Republican counties, as I understand it, if you take out the hand-recounted votes
in those Republican counties that they decided to do themselves by hand, Gore
was leading after the machine recount. [He] was actually leading because of a
300-vote difference in those seven or eight counties. Those extra votes were the
ones that made Bush appear to be winning after the machine recount.

P: Of course, that becomes a critical issue. Whoever is ahead has an obvious
advantage because then the other person is seen as a challenger.

B: For history's purposes and for the public's purposes, the problem is [that] the
person controlling all of this information is the Secretary of State, who is the
chairperson of the Bush campaign. Obviously, for historical purposes, no longer
for political purposes it doesn't matter, is she sitting there saying, Gore is
winning the machine recount, Seminole County, you better start counting votes?
We know there's votes in Seminole County, so I want your report to include
hand-counted votes. Seminole and Putnam and Gadsden were all done by hand
during those seventy-two hours.

P: Nassau County did the re-count and Gore got fifty-one additional votes, but that
was not included in the final count.

B: No, it was not.

P: How do you explain something like that?

B: The Florida Supreme Court avoided that issue. Sanders Sauls himself recused
himself from the case, so that can go without historical comment. He should
have probably recused himself before hearing the case if he felt he couldn't
handle it. He [should] have thought about it before we started the case. Nassau
County, that whole issue was avoided by the Florida Supreme Court.

P: When you are trying to deal with Palm Beach specifically, did you think the
butterfly ballot was illegal and did you want to, at some point, proceed with a

B: Personally, absolutely. I thought the butterfly ballot was unlawful and I thought
the appropriate time to proceed with the challenge on the butterfly ballot, if
necessary, was in the contest phase of the election, not the protest phase. We
had an election procedure, 102.68, which specifically allowed for irregularities in
the ballot to be part of the contest. There is no question that our statute said that
if it was a hand-written ballot, the butterfly ballot was unlawful. If it was a

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machine ballot, it should nearly as practical follow a hand-written ballot, unless
there's a reason otherwise. I don't know of any reason that could have been
given otherwise.

P: The Democratic party did not protest the ballot when it was officially presented.

B: I think that's again a newspaper report anomaly. I'm going to use a piece of
paper right now, what the Democratic party got was a printed ballot form. It didn't
have the [holes]. So what are they going to protest? When the ballot is laid into
the machine, that's when the holes ended up being misaligned. You don't know
that until the morning of the election.

P: The ballot printed in the newspaper, obviously, is not going to have the holes.
B: [It] did not have the holes.

P: And the document that Theresa LePore presented to the parties did not have
them, is that correct?

B: That's correct.

P: Had they seen that, do you think they would have protested at that point?

B: That's pure speculation, but I can't imagine. If you'd seen this butterfly ballot...
The other thing about our election law is the candidate for gubernatorial office
that obtains the second-most amount of votes in the prior election is entitled to
the second slot. Mr. [Pat] Buchanan [unsuccessful presidential candidate, 1992,
1996, 2000] had the second hole. The majority of votes that went wrong here
were really the old, educated voters. If you look at the precincts where this went
wrong, the 3,500 or 4,000 Buchanan votes and the double-punch Gore-
Buchanan votes occur, which is another 20,000 votes, that occurred in old New
York, Philadelphia, Chicago, seventy year-old voter precincts who are used to
getting their vote done and getting out of there. Second hole, okay? We lost the
governor's race last time. Second hole.

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] in his
book argues that that's where the Democrats were wrong. He said that they had
a problem and they confused machine error with voter error. If a voter votes
incorrectly, that vote is thrown out.

B: With all due respect to Judge Posner, if a voter votes incorrectly, that vote
certainly is thrown out. That's not the issue that would have been litigated in the
contest phase. What would have been litigated in the contest phase was

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whether or not the ballot was defective. Therefore you needed to have a new

P: Was there really a legal remedy at this point?

B: A new election. Whether or not that was a political remedy is a different
question. [The] legal remedy was a new election.

P: The court can always order that if the intent of the voter has not been clearly

B: Correct. Whether or not that would have been politically viable for these courts
to have done [is another issue]. Obviously the courts ducked a lot of issues here.

P: Certainly, Judge Jorge LaBarga [Palm Beach County Circuit Court] was not
going to do that.

B: That's part of the problem. Judge LaBarga didn't have jurisdiction over the
butterfly ballot case. The only one who had jurisdiction over the butterfly ballot
case was Leon County court. It was a statewide issue. The Florida Supreme
Court completely ducked that issue. Mr. Fladell, and all the rest of these people
who filed that lawsuit during the protest phase, there was no remedy that could
have been afforded them in the protest phase of the election.

P: What do you think about Bruce Rogow's [attorney for Theresa LePore, elections
supervisor in Palm Beach County during 2000 election] suit when Butterworth
sends down an opinion that they can continue to count and Harris sends down
an opinion to the canvassing board of Palm Beach saying they cannot? He filed
an interpleader to the Florida Supreme Court. Do you think that was a wise

B: I can't comment on [that]. Bruce had to represent his client at that point.

P: He represented Theresa LePore.

B: The Florida Supreme Court ended up taking the whole thing shortly thereafter,
not through Bruce's petition, but to the appeal from Judge [Terry] Lewis's [Leon
County Circuit Court] situation, enjoined everything and started to take hold of
the situation. Judge LaBarga and the Fladell case and these other cases
couldn't do anything in the protest phase. If you read Judge LaBarga's opinion,
he says, I'm going to deem this to be a contest action. It's like he waved a magic
wand and said, we've already certified a winner and I'm going to deem this to be
a contest action. That was one of the single most disingenuous things done, but

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it was allowed to be done because of the Fladell lawsuit. It was in the protest
phase of the election. Whoever reads this needs to understand, the protest
phase of the election meant there's no certified winner and that we should still be
determining who won by counting votes. The butterfly ballot, if it was defective,
would have only had a legal effect on the whole process after there's a certified
winner. That case would have to have been brought in a court with statewide
jurisdiction, which could have only been Leon County, with Lewis ultimately, or
Sauls in the middle.

[End of side Al]

P: As you begin the protest in the four counties you've chosen, how do you organize
the lawyers?

B: In Dade County, Bill Daley and Ron Klain very much wanted Kendall Coffey
[attorney for Al Gore in 2000 election] to head that effort. Kendall was a former
U.S. Attorney, he had represented Elian [Gonzalez] and understanding the
context in which it was going to be decided as to whether or not to start counting
votes again, they thought it was very important for Kendall to be part of that
process. In Broward and Palm Beach County, I was consulted and helped to put
those teams together. In Volusia County, Jack Young went down and organized
some local people.

P: Were you a strategist or were you actually involved in filing briefs?

B: Both.

P: In one of the books I read, Ron Klain said there was a lot of pressure to count as
few votes as possible. What did he mean by that?

B: I don't understand that comment.

P: Nor did I.

B: Ron would turn to me and say, get those votes counted. This is a quote: put
points on the board, get them on quickly. That's just not consistent with any of
my memory.

P: My theory is that meant to concentrate on these four counties as opposed to
trying to protest other counties.

B: Well, we couldn't logistically protest. If I say it one hundred times, people need to
understand, Gore would have been happy to count all sixty-seven counties. Our

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law is such that we would have been litigating in fifty-one of those counties. As it
is, we litigated in these four. These [were] four allegedly Democratic strongholds.
We went to court four or five times in Broward and Palm Beach and Dade County
to get votes counted. In Dade County, they stopped counting votes on
November 21 and we had to go up to the Third District Court of Appeals who
said, you're legally entitled to have these votes counted, we just can't help you.
Because of that riot. How are we supposed to do this in these other fifty
counties? We would have needed every lawyer in the United States.

P: It was hard enough in the Democratic counties.

B: It was hard enough in these counties. When people say, why didn't we ask for
that? We did. The only way to have done it was to have been by agreeing, and
this is important in a democracy, to go to the contest phase, to stipulate that
we're in the contest phase, which is what Gore would have proposed to Bush.
We're in the contest phase of the election, but we're not doing this through court
procedures, we're shaking hands. We are now in the contest phase of the
election, let's count all the votes. It wouldn't have been as disruptive to the fabric
of the democracy.

P: Do you think the butterfly ballot cost Gore the election?

B: I don't think there's any question that cost Gore the election. That along with the
sample ballot in Duval County with the Constitution Party and the [instructions to]
vote every page. Those two things.

P: In Duval County they had a lot of confusion. They had more over-votes in Duval
County than in Palm Beach.

B: The problem in Duval County was their sample ballot, which would have been a
legitimate contest phase issue, but it would have taken a lot of proof that we
didn't have time for. It said, vote every page, so voters who went with the sample
ballot and were voting every page, when they turned to the second page on the
presidential ballot, they invalidated their ballot. I understand there was 10,000 or
15,000 votes with Gore-Lieberman and the Constitution Party punched on the
second page.

P: In fact, some of them voted for all ten candidates.

B: Those clearly, those votes would have been invalidated in any event. There
were some large amount of voters who had voted the second page.

P: How would you assess the impartiality of the Palm Beach County canvassing

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board, particularly Judge Charles Burton [County Court, Palm Beach County;
chairman, Palm Beach County Canvassing Board]?

B: I think that Judge Burton had a particularly difficult job, but I also think it was
clear that he did not, according to Judge LaBarga, apply the law. That's
according to Judge LaBarga, who is also a conservative judge. He was not
applying the law and that cost a lot of time. As to why he didn't apply the law
initially, only he knows.

P: I talked to Carol Roberts [vice-chair, Palm Beach County Commission; member,
Palm Beach County canvassing board] and she said that Kerey Carpenter
[assistant general counsel for the Florida Department of State] was representing
the Secretary of State and that she misled Burton.

B: I can say this, this is on the record. There is a transcript of this on the Broward
County canvassing board, that the Republican lawyers either deliberately or
grossly negligently, as we say in the law, misled the Broward County canvassing
board as to what the Texas standard was on recounting votes.

P: That is the dimple standard.

B: The dimple standard. They said that the Texas standard required a clearer
punch through. That's clearly not what the Texas standard is. When called to
task on that, the lawyers here basically had a riot. How dare you question us?
Well, that's not what the Texas law said. Then the judge here said, read the law,
and said, no, that's what it says. The Texas law which George Bush signed into
law allowed for these dimples to be counted.

P: Again, according to Carol Roberts, Kerey Carpenter apparently allowed Burton to
get a judgment from the Secretary of State and indicated to him that it was not
binding, and in fact, by law, it is binding.

B: [During] that whole series of events, I was in the courtroom. Remember how we
said before [that] Al Gore didn't sue anyone to start this off. George Bush sued
in federal court, in Judge [Donald] Middlebrooks's [U.S. District Court] court, the
day Al Gore made his speech saying, why don't we try to count all these votes
through a civil process without lawyers. George Bush sued that day. The day
after that, Volusia County sued because Secretary Harris said, I'm not going to
count your votes, Volusia County. [Volusia] is not an overly Democratic county,
by the way. But Volusia County sued to say, you need to count our votes, this is
the presidential election. The first action we took was to intercede in that lawsuit
because our rights were being affected. The first lawsuit was filed by George
Bush, the second lawsuit was filed by Volusia County. Al Gore had not sued

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anyone and never did sue anyone in the protest phase. We interceded in the
lawsuit in the protest phase. We didn't sue as a plaintiff. During the first court
hearing with Judge Terry Lewis, while we're litigating the case, in the middle of
the case, not before the case started, we're getting these opinions from
Secretary Harris that are being delivered to everybody while the case was going
on. This is equivalent to Alice in Wonderland, the Queen of Hearts, off with their
heads! How come? Because I said so. This is not what constitutional
democracy and the rule of law are about. You're seeing at the Palm Beach
County level something that was happening, but I'm seeing it up there in
Tallahassee. Judge Lewis, you might want to take this in consideration. Is the
ink dry yet? That's not how we make rules in this state. There are rule-making
procedures in this state.

P: Katherine Harris filed a suit with the Florida Supreme Court to stop the recount
and Joe Klock [attorney representing Katherine Harris during 2000 election] filed
that suit. What was your reaction to that?

B: My general reaction to the Secretary of State's behavior in this was a very
unfortunate series of behaviors that cannot help citizens feel that their
government has integrity. To this day, the one election reform, the one election
reform that the state of Florida could have adopted that would have maybe
avoided all of this, was to make sure that the Secretary of State cannot be
involved in campaigns.

P: Also true of the Attorney General?

B: Also true of the Attorney General. Although Butterworth very quickly made it
clear that he was going to act as Attorney General, at least to me.

P: There was some criticism from Bill Daley that Butterworth wasn't helping enough.

B: He wasn't helping at all. November 8 was the last time I saw Bob Butterworth
until after this was over. Bob Butterworth sat there and said, this was the last
involvement he had in the campaign, at that November 8 meeting when I said,
you need to do a recount. Bob Butterworth said, yes, you need to do a recount,
indeed that's how I'm Attorney General. I did a recount in 1986. He punctuated
my point. He said, these machines don't work. I did a recount in 1986. That's
why I'm Attorney General. That was the last thing he said about the campaign
and he basically pulled me aside afterwards and said, I'm now in a conflict
situation. I've got to go be Attorney General. He did things that hurt us, candidly,
the absentee ballots.

P: Certainly, his opinion on the military ballots.

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B: He did things that he thought he had to do as Attorney General. Mac Stipanovich
[chief of staff for Governor Bob Martinez] was running Katherine Harris' office.

P: What would you think of a Secretary of State getting that kind of advice from a
known, partisan Republican?

B: I think it's despicable. I think it's absolutely, outrageously despicable under these
circumstances. Her job was to act as a neutral arbiter in the election. She had
given testimony, as I understand it, I haven't seen it, this is heresy. She had
given testimony to the state Senate saying she knew that the punch-card
machines weren't working. They had a problem in the Republican [presidential]
primary in Broward County which was reported up to her. She knew these
machines weren't working. Her job at the point in time that the train wreck
occurred was to say, we have a train wreck, I need to do what Bob Butterworth
did. I need to act as Secretary of State, not as the chairperson of the Bush
campaign. Mr. Stipanovich, you need to leave my office.

P: The one general assumption is that she really didn't know much about election

B: But then who do you call? Mac Stipanovich? If anything, call up other former
Secretaries of State in this state. Make it clear. Look at the whole Seminole
[County] and Martin [County] situation. She is the chairperson of the Bush
campaign. The Republican ballots go out with the wrong data on them to be
legally compliant. If they come back the wrong way, I'm talking about the
appearance, right now, of this problem, whose problem is this? As the
chairperson of the Bush campaign, she let it go out the wrong way and somehow
these ballots are getting corrected in Republican counties, without the Democrats
being called in to correct similar mistakes. The appearance of this stinks.
Whether or not something happened, the appearance of it stinks.

P: I want to ask you in more detail about that. One of Harris's rulings was that you
could not recount unless there was a machine malfunction or some event like a
hurricane. Bob Butterworth comes in and makes an alternative ruling.

B: [It] is not by rule-making that she does that. She does that by fiat on November
19 or 20. This is not a pre-existing rule prior to the election. This is some sort of
Mac Stipanovich-Joe Klock-written rule that occurs after the election. If anything,
that kind of ruling violates 3 U.S.C. 5, which is what the Supreme Court said the
whole election fell on. You can't make up rules after the election. Certainly, she
knew the machines malfunctioned. That's part of why that ruling is so
disingenuous. She knew the machines were malfunctioning, or at least her office

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P: 3 U.S.C. 5 would apply to the counting of the military and absentee ballots.

B: Absolutely.

P: The Supreme Court did not take up that issue.

B: This is one of the places that the Florida Supreme Court deserves a little bit of
credit, but it's kind of after-the-fact credit. The Supreme Court made up [the date
of] December 12. Nowhere in Florida election law does December 12 exist as
the final day.

P: This is the safe harbor?

B: It's the safe harbor in federal law, but nowhere does it say in Florida election law
that if we don't meet the safe harbor, our votes won't count.

P: In fact, most lawyers argue that the 18th would have given plenty of time.

B: The 18th would have been fine and Leander Shaw [Florida Supreme Court
justice, 1983-present; Chief Justice, 1990-1992] argues on December 22, 2001
on a remand opinion that January 4 would have been okay. By the way, Leander
Shaw dissented in the 4-3. He makes it very clear, as did the majority in the
December 22 remand opinion, that December 12 is not a part of Florida election
law. The only player who violated 3 U.S.C. 5 in this entire process, the gross
violator of 3 U.S.C. 5, was the United States Supreme Court.

P: Talk about the "chaotic" situation, when the Palm Beach County canvassing
board was trying to determine how to count the vote and switched the standard,
which ultimately is going to be a significant decision.

B: The problem I have with the words "switching a standard" is that Florida election
law this is one of the places the Florida Supreme Court ducked it and the
United States Supreme Court ducked it since 1920 has been clear about what
the standard is. [The standard is] intent of the voter. Darby v. State [case in
which the intent of the voter is determined to be the standard, even if mistakes
are made on a ballot by a voter] is a case in which the X was marked in the
wrong place. The Florida Supreme Court, I forget the year of the case, said, we
don't care if the X is in the wrong place; if you can determine that the voter
intended to vote for whoever, you have to count the vote. It's a paramount right
in a democracy. It's the right to vote. It's the first article in the Florida
Constitution. If you can determine how someone wanted to vote, you have to

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[count] the vote. Now, I ask you what's the difference between a pencil and a
stylus? Nothing, there is no difference between a pencil and a stylus except
[that] this is the current election machinery we use. As a lawyer who has been
practicing law for twenty-two years right now, if you said to me, a typo on an IBM
Selectric [typewriter] is going to be interpreted any differently than a typo on my
Microsoft computer, from a legal point of view, it's not going to be. It's a different
machine. A pencil is different than a stylus, but the intent factors are going to be
judged the same way by courts.

P: Judge Middlebrooks, in his decision, makes it very clear that determining the vote
is entirely up to the canvassing boards and that there are sixty-seven different
canvassing boards.

B: Let me go a step further because that's not exactly right. Middlebrooks makes it
clear in the protest phase that this is going to be determined by the canvassing
boards. However, ultimately, whether or not a ballot constitutes a legal vote is a
legal decision. It's not a fact decision. It's a decision for the courts. It's like
interpreting a contract. If Gore said, that's a vote and Bush protested it,
ultimately the Florida Supreme Court would determine whether or not it was a
vote. It would physically go up to the Florida Supreme Court and seven judges
would sit there and say, I think it's a vote or I don't think it's a vote. Just like what
happened in the [William] Delahunt [U.S. Representative from Massachusetts,
1997-present] case [in which dimpled chads were counted as valid votes] in
Massachusetts. Just like what happened in Darby v. State with the pencil mark.
The Florida Supreme Court would have been the ultimate canvassing board for
all of the protested votes, if it stayed in a contest. In the contest phase, ultimately
the Florida Supreme Court would have taken whatever votes were being
contested at that point in time by either side. They would have been put in the
well of the Florida Supreme Court. They would have been passed along the
court and they would have had to determine whether or not it was a vote
because it is a legal determination. That's hard for laypeople to understand. It is
not a factual determination. The canvassing boards were acting in a quasi-
judicial capacity like a zoning board, where a zoning board determines, okay, that
zoning is legal. Ultimately it's the decision of the court whether or not that zoning
is legal. The lay zoning board makes an initial determination because of the way
Florida sets up its government.

P: The reporting of all this chaos and the Republicans saying people were eating
chads and that there were chads all over the floor. All of that seemed to have
some impact on the United States Supreme Court.

B: That was spin, that was just spin. Here's the interesting thing about the United
States Supreme Court decision, which to me [is] the most obvious problem with

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the decision: the United States Supreme Court took the certified total from
Katherine Harris and said, that's the right total. That total included hand-counted
votes in Broward County, Volusia County and seven other counties upstate
where they counted votes by hand. I guess we have an unconstitutional certified
total. [I can't say] whether or not it impacted the emotion of their decision, [but] it
certainly impacted the words of their decision. It couldn't have impacted their
logic very much, because they accepted hand-counted votes in the certified total.

P: That's a good point that I have not heard before. In retrospect, how do you
assess the job that the Palm Beach County canvassing board did as a whole?
Do you think they were fair?

B: It's very hard for me to give you that vantage [point] because I was in
Tallahassee. I wasn't here. I can say to you the following things. It's clear that
the Palm Beach County canvassing board refused initially, because of Judge
Burton's position, to apply the intent of the voter standard. He was directly told
by Judge LaBarga what the law was. [He was] refusing to apply the law. These
are factual statements right now. It's clear that impacted the way votes were
counted and that they did not go back to the votes that had already been counted
to correctly apply the appropriate standard. That's clear. It's in the transcripts
that they did not do that. From that point of view, I think it's unfortunate that
occurred. I wasn't there, so I'm not a direct observer. It appears from what I've
read and heard, that Judge Burton was taking direct advice from the Secretary of
State's office on this, which could have been very innocent. It was a bad
situation and he's saying, what do I do here, chief? You're in charge of this
election. What's unfortunate, and this part I will say directly, is that the Secretary
of State's office clearly was not giving nonpartisan, neutral advice.

P: I talked to Judge Burton about this. It was his first time serving in that capacity.

B: We only have a tied presidential election once every 124 years. They always
happen in Florida.

P: He'd never been on a canvassing board before, so he really did not know the law
and he admitted that. He was looking for advice.

B: As I said, I don't know that dynamic. I think it was clear he was trying to obtain
advice from the Secretary of State's office, which I think he should have been.
The problem is the Secretary of State's office was not giving advice in a
nonpartisan manner to undo the train wreck.

P: What was your assessment of Judge Middlebrooks's decision? Obviously, at
this point, he clearly thinks it's a state issue.

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B: I think Judge Middlebrooks hit a home run. I think he's the only one that got the
whole thing right from the beginning, or most of it right from the beginning. He
was confronted by Governor Bush, by all the issues. To put it all together as
quickly as he put it together was really quite impressive, actually.

P: Did you, at this time, anticipate that the case would eventually go to the United
States Supreme Court?

B: My view of the equal protection claim, which is what the United States Supreme
Court eventually took the case on, was that if there was an equal protection
problem, it was on Election Day and you have to void the election. Any analysis
short of that would have been deficient, because the problem that was
enunciated in the equal protection analysis is [that] you can't figure out how to
count these votes, because the standards are going to be different. Well, on
Election Day the standards are different, because my chance of having my vote
counted in a punch card county is statistically a lot less than someone in an
optical scanner county, [and] statistically the optical scanner county is a lot less
[accurate] than a [touch]screen county. If there is an equal protection problem, it
existed on Election Day and for the court to take that problem after Election Day,
[was] after people were trying to correct the problem. As Judge Middlebrooks
said, if this problem existed, it existed on November 6, not on November 8,
therefore I'd have to void the election to carry this logic to its extreme. I didn't put
much credence in that argument for those reasons.

P: The Fourteenth Amendment issue is not taken up again until the U.S. Supreme
Court 5-4 decision. The Eleventh Circuit Court turned it down.

B: [They] turned it down and the United States Supreme Court denied cert[iorari].
They could have taken the issue in the protest phase. They declined to take it.
They reached down. This needs to be said as often as possible, Justice [Antonin]
Scalia's [U.S. Supreme Court Justice, 1986-present] concurrence on December
9, enjoining the votes from being counted, was raw, brute power devoid of legal

P: You were involved in Lewis 1. Can you tell me exactly what your strategy was in
that case?

B: Well, Dexter and I were making up our strategy as we were running to court. We
got notice of this hearing by CNN about ten minutes before it was occurring. So
[for] Lewis 1 we were making it up as we were going to court. Our strategy was
to help Volusia County. We wanted the votes counted.


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P: Why were you not notified about that hearing?

B: For some reason or another, we were told it was going to be 1:00. Things were
moving chaotically. I think it was a 12:00 hearing. One way or the other we
ended up there on time.

P: Essentially, in the first go-round, Judge Lewis says that the seven-day statutory
recount is mandatory, but the Secretary of State can use her discretion in
counting votes.

B: If you look at the transcript of Lewis 2, Judge Lewis looks at me before he closes
down the hearing and says, do you have any witnesses? [It was] like [he was]
begging me for a witness. In order to get an injunction, it's a factually intensive
[determination], and in order to get an injunction against a constitutional officer,
you need to show that she acted arbitrarily. We were not allowed to do that. We
were not allowed to put that proof on. This is a very important thing that occurs.
The Florida Supreme Court in that appeal acts very, very judiciously and
attempts to reconcile the Florida Constitution with the Florida election laws and to
construe the Florida election laws in accordance with the Florida Constitution.
Article 1 [says that] all power emanates from the people, the right to vote is
paramount and says that if there are conflicts in these election laws, they need to
be construed in accordance with the Florida Constitution, which holds the right to
vote as paramount. That's what they basically say.

P: Is it a constitutional issue and not a statutory issue?

B: No, it's a statutory issue, but we're going to reconcile these statutes to be
consistent. The legislature couldn't have intended to pass a statute inconsistent
with the constitution. This is important. The United States Supreme Court says,
wait a minute, if you're telling me it's a Florida constitutional issue, which Florida
never says, by the way, then you could be in violation of 3 U.S.C. 5, because
you're making up new rules. They send this back down, which forces the Florida
Supreme Court on remand to say, it's a prima facie situation that Kathy Harris
acted arbitrarily here. That's what they say in the second opinion. That opinion
appears to be more political, which is exactly what Gore and Christopher didn't
want. They thought we could play this on the higher plane. The first decision,
the right to vote is paramount. We want to count all the votes. The United States
Supreme Court remands and basically says, we're only going to let you do this
one way. You're going to have to call her arbitrary. The lawyers, if you read
through this, that's what they're saying. You're going to have to call her arbitrary.
So go ahead and call her arbitrary. [The U.S. Supreme Court are] the ones who
inserted politics into [the situation].


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P: Is this the Florida Supreme Court 2 decision, the 4-3 vote?

B: No, this is the remand. There are four Florida Supreme Court decisions. This is
the remand decision, the one where Sandra Day O'Connor [U.S. Supreme Court
Justice, 1981-present] is screaming at David Boies [attorney for Al Gore in 2000
election], [saying] haven't they done that remand yet? What have they been
doing down there?

P: Ultimately, she's not satisfied that the Florida Supreme Court responds to the

B: Well, they do. They happen to respond [that] day, but they also had [the] Fladell,
Seminole and Martin [cases] to take care of. They wanted the Florida Supreme
Court to fall into this 3 U.S.C. 5 trap. The Florida Supreme Court even on the
remand doesn't do it. They just say [Harris is] arbitrary.

P: David Boies said that they couldn't win if they actually set a standard. Of course,
the U.S. Supreme Court would have said they changed the law. If they didn't set
a standard, they violated the Fourteenth Amendment.

B: That's the trap that the United States Supreme Court set up. The problem that
the Florida Supreme Court didn't go for, they didn't want to set a standard, but
they could have set a standard. If the United States Supreme Court says, they're
the ultimate, [they] get to play all the cards. Florida law had an established
standard. We put all this in our briefs, if the Florida Supreme Court had gone
with this established standard [intent of the voter] and the jurisprudence of this
established standard, I think the United States Supreme Court would have been
hard-pressed to ignore some of that.

P: If they had just said, the standard is the intent of the voter...

B: They said that. They actually said that. I think they needed to use examples of
Darby v. State, the bramble bush of how law expands as new technologies
[emerge]. There's no new law here. There are new facts. There's no new law.
That's the part that I think again is part of this spin by the United States Supreme
Court. They're smart enough lawyers to know there's no new law here. The
intent of the voter is the intent of the voter, whether you do it by pencil or by
stylus or next year if we're doing it through some computer technology that fails.
If you press the button next year and you're pressing it for Gore and it registers
for Bush and you can show through the computer that the circuits failed, does
that mean that we can't count the votes? Are we making new law when we go
through and say the computer technology failed? No, we're not making new law.
It's the intent of the voter. When they press Gore, they intended Gore, it

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registered Bush. There's no new law here. The Florida Supreme Court avoided
this because they didn't want to be sitting there, in my humble opinion, looking at
ballots. That was their biggest fear. [The Florida Supreme Court] knew this was
going to end up there [counting ballots in the Florida Supreme Court]. If they
announce an intent of the voter [standard], they took the law and said, this is the
law in 1923 and this is what it means in 2000. [They have] not created a new
standard, this is what the courts do, this is what it means.

P: They interpreted the law.

B: They interpreted the law as it now applies to the technologies that we were using.
This is as old as English common law. [They] applied it to the technologies we're
now using. They knew, Justice [Charles] Wells [chief justice, Florida Supreme
Court, 1994-present] knew that he was going to be sitting there looking at ballots.
Just across the street from him, the Republican legislature [was] threatening to
dismantle the courts [and] he did not want that to occur. I don't know this, but
that's what I suspected. If you look at the first Florida Supreme Court decision,
pages 34-38, they go on about the intent of the voter and the standard and
Pullen v. Mulligan [Illinois case which states that every vote must be counted
where the intent of the voter can be discerned] and we have the same standard
in this state. There's a beautiful [quotation] in that decision about how machines
will not wreck the intent of the voter, we can do this, yada yada yada, blah blah
blah. By the time we get to the 4-3 decision, it's like [they are saying], not me! I
ain't touching this one. We have an intent of the voter standard in this state and
that's all the legislature said, therefore that's all we're going to say. Big retreat.

P: A lot of people argue that one reason for Well's very vigorous dissent is that he
was trying to hold off the legislature.

B: I think he was. I think he was.

P: David Boies also argued about the reasonable-man standard that jurors use all
the time. Was that ever presented by the Florida Supreme Court?

B: Judges interpret contracts all the time. That's the judge's job and then they send
[the case] to the jury for the determination of the facts. Reading a ballot is a legal
determination. It's the judges who are going to have to do it. This is [an area]
that David [Boies] and I might not agree. It's the judges who are going to have to
do this. Handing Justice Wells a ballot would have been equivalent to handing
him [any other legal document which judges are bound to interpret], because of
what was going on in the Florida legislature. [The Florida Supreme Court did not
want to be in the position of interpreting ballots.] I don't know that he'll ever tell
you this. He's sitting there saying, they're going to dismantle the courts. The

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Roundheads over there are going to dismantle the courts.

P: I think it had to be in his thinking.

B: I think it absolutely had to be in his thinking.

P: Tom Feeney [Florida state representative, 1990-1994, 1996-present; speaker of
Florida House of Representatives, 2001-present] said that the 4-3 decision was
an insult to the legislature.

B: Right, the Roundheads were dismantling the courts. It was literally that severe. I
was in Tallahassee, you felt that as you went to the Florida Supreme Court.
While I can't answer the Palm Beach County question, I can answer the
Tallahassee question. That was there. It was clear. When you saw and felt the
Supreme Court of Florida, the pressure [was] building, if you will. We have a
Republican governor, a Republican legislature, they already had controversies
existing between the rule of law and what people would have liked to have seen,
politically. This is only adding fuel to that fire. It was clear that this was a very
difficult decision for them, not because of the meaty legal issues, but [because]
there were apparent political overtones in the courtroom.

P: Do you think the Florida House was wise in voting 79-41 to, in effect, seat the
Bush electors?

B: I think the House had no authority to do that. They could do whatever they want
to do. [If] they already allowed the people of the state of Florida to select their
electors and to seat Bush electors, [it] would have violated 3 U.S.C. 5. It would
have changed the rules after the election. They could do whatever they wanted
to, and clearly they chose to do that. In terms of whether or not it was lawful
[and] constitutional, [it] certainly was anti-democratic.

P: Of course, it would set a terrible precedent, because the next time the Democrats
happen to be in power, they could do the same thing.

B: But that's why we have constitutions and laws. That's why you can't do things
like that, or theoretically can't do things like that.

P: Dexter Douglass indicated he wanted to serve a subpoena on Katherine Harris
and bring her into court and ask her some pretty specific questions like, what do
you stand to gain from a Bush presidency?

B: [He also wanted to ask her,] who is running your office right now?


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P: Who have you consulted? That sort of thing. Why did you decide not to do that?

B: Dexter and I were in raging agreement on that. We were overruled by
Christopher, [Daley and Klain]. Warren Christopher [is] a man who I greatly
admire. I don't want in any way for history to reflect my lack of admiration for
Warren Christopher, since this is a historical project. When Warren Christopher,
after the November 9 meeting, said I'm going to meet with Kathy Harris; I said,
will you serve our subpoena and will you serve our Freedom of Information Act
request? He said, we're not doing that. I said something to the effect of, you
can't negotiate with terrorists. [At] which point in time, everyone in the room
looked at me in shock and horror, not remembering Secretary Christopher's
difficulty in the Iranian situation. I was just reacting from the lower cerebral
cortex because I knew what we were going to face here. My impression was he
did not think at all at that point I think he changed but at that point he honestly
thought this could be done. We're talking about the greatest democracy in the
world. He and Secretary Baker and Secretary Harris are going to figure out a
way to make the greatest democracy in the world look like the greatest
democracy in the world. I honestly think that's what he thought. I didn't think that
for an instant and I don't think Dexter thought that for an instant.

P: It seems, in some cases, Dexter Douglass mentioned this, that a lot of times the
Gore team did not listen to their Florida lawyers.

B: That's right.

P: In retrospect, do you think it was a mistake not to serve that subpoena?

B: The subpoena is clearly one of many things. In retrospect, I think it's for history
to judge whether or not Gore's respect for the institutions [of government was a
better long-term strategy for the United States]. How effective would the United
States Supreme Court be if we didn't defer to the equity they've built up over the
last 200 years? For that matter, [how effective] would the presidency or the other
institutions be? I've heard Gore say this [on] more than one occasion. Our
democracy is a little over 200 years old, that is not a long time. If you don't keep
investing in these institutions, there but for the grace of all of us, we go into
dictatorships and chaos. Gore's decisions were always calibrated by that
thinking. Right, wrong, or indifferent, they were always calibrated by that
thinking. I do not think that Katherine Harris's decisions were calibrated by that
thinking. Since she was taking direction from the Republican Party during all
this, I don't think that leaders of the Republican Party's decisions were calibrated
by that thinking. Clearly, for right now, the institutions of our government have
survived and are continuing to thrive. Query whether or not that would have
been the case if Gore acted like Bush acted. The question you're going to ask is,

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would he have won? Yes, but maybe we wouldn't have been able to respond to
September 11 as well as he [Bush] did. Somebody has to respect, have a
greater view, of history.

P: It would have been at a great cost.

B: It would have been a greater cost. Somebody has to have a long view.

P: You mentioned the Pullen case and I wanted to ask you a couple of questions
about that. You eventually called an attorney named Lavelle.

B: Michael Lavelle [Chicago attorney consulted on Gore's behalf in the 2000

P: Tell me about the process. First he said they did count dimples, then there was
an article in the Chicago Tribune.

B: That was a little interesting sideshow, but again that was a sideshow that was
part of the litigation strategy of the Republican lawyers. The Republican litigation
strategy was a continuation of the Republican campaign. The Republican
campaign in the last election was, Bill Clinton is a liar. Al Gore defended the liar.
Al Gore is a liar too. That was really the premise of the Republican campaign.
Of course, the fact that George Bush had a DUI [driving under the influence] that
we didn't find out about until twenty-four hours before the election [was not
emphasized]. He signed jury forms saying he never was arrested. Never
reached the public consciousness. It was a very effective three-quarters of a
billion dollar campaign. The recount litigation strategy was, our experts lied and
our lawyers lied, we can't trust these people. These votes have been counted
and recounted. As you and I know, as we sit here today, the automatic recount
didn't occur in most of the counties.

The Lavelle thing was, Lavelle contacts somebody. I spoke to him November 21
or November 22 late at night. November 22 was Thanksgiving Day. November
21 is the day that the Miami-Dade County recount was stopped with a riot. We
were dealing with all that and this guy gives me a call. Just for really clear, clear
historical perspective, this is after the Florida Supreme Court cites Pullen v.
Mulligan. This is not before they cite it, this is after this guy reads that they've
cited it. He gives me a call, he says, do you want to know what happened in this
case? I said, yes, I want to know what happened in this case. He litigated the
case and he says that they counted dimpled ballots. Clearly Pullen v. Mulligan
says [that] dimpled ballots should be counted. It's clear in the decision. He says,
I want you to know [that] we counted dimpled ballots in that case. I said, fine,
that's what the decision says, no real big news.

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[End of side A2]

B: The Florida Supreme Court, a couple of days before, had already cited Pullen v.
Mulligan. The whole thread of public perception, that we cited the Pullen case to
the Florida Supreme Court based upon this man's affidavit, is obviously false.
The affidavit occurs after the decision and the Pullen case clearly says dimpled
ballots should be counted. This guy calls me up and he says, we counted
dimpled ballots in the case and I remember it clearly. He's an older man, but
[said,] I remember it clearly and we counted dimpled ballots in the case. Fine, it
will help if you sign an affidavit to that effect, because even though the Florida
Supreme Court says that, this helps the lawyers down in Broward and Palm
Beach County, because remember, we're not counting anything right now. The
Republicans are enjoining votes from being counted. We're litigating this tooth-
and-nail in Broward and Palm Beach and Dade Counties. For everyone who
says why can't we just count the votes, it's because the courts, notwithstanding
all these other decisions, are enjoining votes from being counted.

So we file these affidavits and then he calls me up and he says, I might have
made a mistake. When you're doing a recount, you kind of get a sense of how
the votes are going. He said, I might have stipulated with the lawyer on the other
side not to count dimpled ballots, even though the law allowed them, because I
was going to win without them. Fine, I said, do you want to correct your affidavit
to say even though I could have counted dimpled ballots, we [didn't] something
along that line. He said, yes, I think we need to do that. So we filed a corrected
affidavit and that becomes a big controversy. I was cited to the bar about this.
David Boies was cited to the bar about this. The Republicans fly to Chicago to
take Lavelle's deposition. It turns out that a dimpled [ballot] was counted in the

P: Judge Francis Barth [Cook County, Illinois Circuit Court] did in fact count a
dimpled ballot.

B: [He did] count ballot nineteen, I think it was. They're going through the transcript
and it turns out that [Lavelle] was right in the first instance and they did count a
dimpled ballot in the case. Unfortunately, I tend to curse and I cursed on
November 22 at 2:00 or 3:00 in the morning. I hadn't slept maybe in two weeks
at that point in time. I had the third DCA [District Court of Appeals] problem, I
had the Dade County stop counting votes, this guy now tells me his affidavit goes
wrong, so I said, we're expletive deleted. Which was one of the few times I said
that during this period. Not really, I said it a lot. The Republicans videotaped this
guy's deposition and they want to show [it] at the national trial this section of his
testimony. Phil Beck [attorney for George W. Bush in 2000 election] and Fred

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Bartlit [attorney for George W. Bush in 2000 election] come up to me and say,
we're going to show this on national television where you say we're expletive
deleted. You know, intimidation. I said, as far as I'm concerned, it's the court
rules, show the whole transcript.

P: They didn't want to do that.

B: They don't want to do that, because the guy testified that they counted [dimpled
ballots and] that this whole national show they were making that we had misled
everybody turned out to be not true.

P: Didn't they also file an ethics complaint against you for filing a false affidavit?

B: Yes, it was quickly dismissed.

P: Was it filed with Judge Lewis?

B: No, it was not Judge Lewis. The bar case against me and David Boies.

P: That's hardball tactics.

B: Yes, they were playing hardball, we were playing with two hands tied behind our
back. Absolutely. The death threats not from the Republicans, but we had
death threats, we had to have armed guards in our offices. Sue Gunzburger
[member, Broward County canvassing board] and Carol Roberts had death
threats. My family had death threats. This was not pretty.

P: Some of these threats were made over the Internet.

B: Oh yes, this is not pretty. My assistant tells me she stopped telling me about
them, but they just kept coming.
P: Did they come by e-mail and telegram?

B: E-mails and phone calls and everything.

P: When you decided to go to the contest...

B: Very important, though they didn't want Mr. Lavelle's deposition to be shown on
national television because he clearly says, and points to the transcript as he's
reviewing this twenty-five year-old transcript, there's a dimpled ballot, we were
counting that. Even though they would have had the advantage of saying, look
at these Gore lawyers, how unseemly they conducted themselves. Without
context. It was after the riot in Dade County, it's 3:00 in the morning,

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Thanksgiving Day. I had to get a brief filed before the Florida Supreme Court,
and this guy calls you up. They want to show just that, but not the rest of it.

P: When you decide to go to the contest, who was going to plead that case? Did
you decide that Dexter Douglass and David Boies would present the contest?

B: It was clear that we were having difficulties in the first day of the contest. I was
going to continue to be the chief strategist in the contest. I didn't want to have
any witnesses called because I thought the law was clear. If the election was in
doubt, the votes had to be counted. It was clear to me that there were several
hundreds of thousands of votes that were not counted. There was a 530-vote
margin difference. All we would have to do was show those two things and we
had to start counting votes. We made two motions. To answer your direct
question, yes, David and Dexter were going to be the lead, but we had to bring
Deeno Kitchen [attorney for Al Gore in 2000 election] in. The reason why we had
to bring Deeno Kitchen in, it was clear to us that Sanders Sauls was not going to
move the case. He was going to sit on it. If you look at the transcripts from the
first two days, my firm had tried to get an opposite judge elected to him [during
the prior judicial election]. We were not allowed to recuse him. He clearly was
disposed against us because he eventually recused himself.

P: This is John Newton [attorney for Al Gore in 2000 election]?

B: John Newton.

P: Sauls wouldn't shake hands with him after the election?

B: [He] wouldn't shake hands with John. It was clear he was not going to move the
case, he was going to let the time expire. He would say, this is very complex.

P: Although you requested an expedited calender, did you not?

B: Absolutely, there's no reason not to have one. The rules provide for it. It's an
election contest. [He would say,] I don't know, this is complex, all the rest of that.
You look at the first two days of hearings. When we hired Deeno Kitchen, who
is a friend of Judge Sauls, he agreed to let us at least have a trial done by the
weekend. I footnote that by saying we had to do some country justice in order to
get the case moving. It was clear he was going to rule against us, but at least we
were going to get a ruling.

P: Was there an opportunity that if you could somehow relate it to Lewis 2, that
Lewis would get the case?

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B: Dexter and I wanted to file it as a consolidated matter with Lewis and start to fight
that battle. There's a legitimate difference of opinion here. Klain was concerned
[that] if we started to fight that procedural battle that we would have spent the
time remaining [doing that]. There's one thing Klain was very good at, [which
was] seeing where it was going to end up. He said, we're going to end up in the
Florida Supreme Court anyway. If we end up with Terry Lewis ruling for us or
Sanders Sauls ruling against us, we're going to end up in the Florida Supreme
Court anyway. It's just a question of how quickly can we get there. Which I think
Ron was right about.

P: In the Sauls' case, when Steve Zack [attorney for Al Gore in 2000 election]
questions John Ahmann [owner of election equipment supply company in
California] and people like that, it didn't seem to have much impact.

B: None of that matters.

P: Why were those so-called experts brought in?

B: In my opinion, we didn't need them. Again, that was done more for the camera
than the law in the courtroom. Kendall Coffey wanted [something] like thirty-five
witnesses. I was sitting there saying, we don't need a witness. This is clear. We
don't need a witness. There are hundreds of thousands of uncounted or
miscounted votes. There's a 500-vote margin. The law says, place in doubt the
outcome of the election. If this election is not in doubt, then I need to go back to
grade school. We just need to get the Florida Supreme Court to tell us what the
rules are. By the way, the Florida Supreme Court directly dumped the standard
issue here. That's all we really wanted them to do. We made a motion the first
day of the contest, on November 29, to Judge Sauls saying, start counting votes.
The Third District Court of Appeals said we're entitled to have the Dade County
votes counted in a contest. You're bound by that, start counting votes. He
refused. We made the motion on the second day, he refused again. On the third
day, we asked him to sign an order memorializing his oral ruling. He refused to
sign it. We had to go up to the Florida Supreme Court saying, even though
Judge Sauls refused to sign this order, here's the transcript saying he won't
count votes. Florida Supreme Court said, you'll get here eventually.

P: Comment in general on his ruling in which he said that you did not prove a
probability that the outcome would be changed.

B: That's not the law.

P: I know, but that's what he cited in his opinion. He also said that the canvassing
boards had not abused their discretion.

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B: On the first [statement] that we had not proved a probability, he cited an election
law that was ten years old that had been amended. Even the dissenting judges
on the Florida Supreme Court said, that's not the law. The first problem that
wasn't the law. On the second problem, it's not an abuse of discretion standard.
Whether or not this piece of paper, and I'm holding up a piece of paper,
constitutes a legal vote is not an abuse of discretion standard. It is something to
be determined by a judge. He can't sit there and say, I don't know if you abused
your discretion in counting this vote. It's a legal and constitutional right to have a
judge determine whether or not I voted.

P: The real problem with Sauls, according to the Gore team, was that he didn't
count any votes?

B: Right. He didn't count any votes. Here's the problem with the Florida Supreme
Court. The Florida Supreme Court said, it is not an abuse of discretion standard.
You are entitled, as a matter of law, to have legal votes counted. They said that.
What they said in Dade County was, therefore all the Dade County votes need
to be counted. They then punted Palm Beach. They punted it and said, it's a
legal determination as to whether or not the votes should be counted. We find
that this legal determination has been made. Well, wait a minute, nobody's
looked at the votes yet. In our brief, we cited it's right there in our brief votes
that were not counted that were in the transcript of the Palm Beach County
canvassing board, where a voter punched two holes, for instance, but wrote over
the ballot, I voted for Al Gore. That vote was not counted. Clearly, under Florida
law, there's no question about who that voter voted for and there were other
votes in the Palm Beach County transcripts where people were saying, we need
to go back, because this vote which we're counting now, we did not count before
Judge LaBarga instructed us. Judge Burton says, we don't have time. The
Florida Supreme Court says we didn't make a showing. A showing? It's right
there. The transcripts were in evidence. We wanted those transcripts in
evidence and the Republicans agreed to let us put them in. They stipulated to
them being in evidence. We didn't have a chance to argue them, but they were
in evidence which means that the Supreme Court of Florida could take them in
P: Comment on the 4-3 vote. Were you surprised it was that close?

B: No. To me, what was going on across the street [at the Florida legislature] from
the Florida Supreme Court was permeating that building.

P: Were you surprised that Leander Shaw dissented?

B: I was surprised that Justice Shaw dissented, yes. Again, when we left, we

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thought it was either 4-3 or 5-2. We didn't know which way he was going. It was
clear which way Justice Wells was going from the first question. His first
question in the oral argument was directly from the remand opinion from the
United States Supreme Court: tell me how 3 U.S.C. 5 affects this.

P: It's also important to note that they ask for just the under-votes to be counted.
Why not count all the votes?

B: First of all, the only one who asked for all the under-votes to be counted was
George Bush. He had a counter-petition, which is a unique instrument, which
says, if you're going to count any votes, count all the under-votes. We were only
contesting the votes that had not yet been counted that we had asked to be

P: You just requested under-votes, is that correct?

B: We requested the under-votes in Broward and [Palm Beach and] Dade that had
not yet been finished. That's what our petition says. George Bush's counter-
petition says, and the interveners' counter-petition says, count them all.

P: Do you think it was a mistake not to request the counting of the over-votes or
was that a time issue?

B: Do I think it was a mistake? In retrospect, I think it was unfortunate that we could
not figure out a strategy to count them all. We tried a political strategy to count
them all, that didn't work. It was rejected. Two of the three votes that dissented
said, you're out of time. So if we said to them, count the over-votes too, we
might have lost Lewis in terms of that. We were trying to give them an easy,
simple task, given the pressures they were under. Some want me to say it was a
mistake not to ask for the over-votes too. Remember, our biggest problem was
getting any votes counted. Any votes counted. Count any votes. Over-votes,
under-votes, count votes. People say it was a mistake not to do this. We
couldn't get them to count any votes. We wanted to do this on November 8.
Once we opened up these counties and it was clear, if our original strategy had
worked logistically, which was our best strategy logistically, I will argue that until I
die, our best strategy logistically to count votes was to start the way we started.
There was no other way under the law for us to logistically move forward. If we
started counting votes, which we never did in those four counties, and people
had seen legitimately that there are votes that were not counted by these
machines that needed to be counted. Gore had said on the Monday after the
election, let's count the whole thing. And [if] we had a Secretary of State that
said, we've got a problem here, how do I mediate between these two parties to
come to a legitimate outcome?

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P: If you had in fact counted some of these votes and Gore had taken the lead,
would the legal positions then have been reversed?

B: I don't think so. I think Gore would have said, let's count them all, see what

P: Even at that point?

B: Yes, I really do.

P: The Bush strategy would have obviously changed if he were behind.

B: Gore's position was, he needed to be a legitimate president and he needed
legitimate institutions.

P: The Florida Supreme Court then asked Judge Lewis to begin counting the votes.

B: Once you started to count these votes, they're on the table. Lewis, in a
newspaper report, said, if we had petitioned to modify the court's order once it
started, if we had petitioned to include over-votes too, which certainly [was] part
of our strategy once we got someone to start counting votes, he would have
probably allowed that.

P: Apparently, according to Judge Lewis, they could have finished the count in time.

B: Yes.

P: I notice the Miami-Dade canvassing board stopped counting because they said
they couldn't finish the count. They had something like eight days to finish and
Lewis counted them in one day.

B: Miami-Dade stopped counting because of the reason that their supervisor of
elections intimated in a newspaper reports. Because of the riot.

P: This is David Leahy [Supervisor of Elections, Miami-Dade County; member,
Miami-Dade County canvassing board]?
B: Yes. That's why they stopped counting.

P: Talk about the 5-4 decision of the U.S. Supreme Court.

B: The 5-4 decision. I give my [view] of history in my law review article. Go ahead.


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P: What was your overall assessment of that? I know a lot of people argued that
there was no constitutional crisis. That it was a partisan, political decision.

B: It clearly was.

P: Judge Posner said it wasn't a very good legal decision, but it was a pragmatic

B: Well, what does that mean? Might makes right, power wins? That's a really bad
argument, isn't it? It wasn't a good legal decision, it just was pragmatic. That
means the President of the United States has the armed forces in its control right
now and if you want to be pragmatic, he sure could be, but we as citizens might
not like that.

P: Do you think that part of the basis for their decision was to end what they
perceived to be a chaotic situation, or do you think they just wanted Bush to be

B: They perceived [it] to be a chaotic situation. Well, we have a president.
American presidential elections have gone to the House of Representatives and
the Senate on three or four occasions. We had just survived an impeachment.
The Supreme Court didn't seem to need to intercede in that. They let the
constitutional processes work out. I don't know what they perceived. I do know
that the Constitution of the United States says that in the event that a state sends
up two sets of electors, it's for the House of Representatives and the United
States Senate to decide. Unfortunately, the United States Supreme Court didn't
seem to read the Constitution very well.

P: Should they have taken the case at all?

B: No.

P: Was it a 7-2 or a 5-4 decision?

B: It was a 5-4 decision on whether or not December 12 was the last day, which
was clearly a made-up day by the United States Supreme Court. I challenge any
historian [or] any kindergartner to read the Florida Election Code or the Florida
Constitution and tell me where it says December 12 is the last day. They said in
their 5-4 opinion that December 12 was the last day.

P: In fact, time was up.

B: And that time was up. Indeed, that opinion was issued on December 11 at 11:00

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at night.

P: In fact, some critics say that had the court acted earlier and not remanded it to
the Florida Supreme Court, there may have been enough time to count the votes.

B: I think clearly there would have been. Certainly their actions both in word and
deed appear to be political. In terms of the 7-2 aspect of the decision, Justice
[Stephen] Breyer [U.S. Supreme Court, 1994-present] and Justice [David] Souter
[U.S. Supreme Court, 1990-present] said there's an equal protection problem,
but we have time to fix it. As I said to you earlier, I think Judge Middlebrooks got
that right. Is there an equal protection problem? There's an equal protection
problem anywhere you want to find it in American society. The question is
whether or not, as Justice [Louis] Brandeis [U.S. Supreme Court, 1916-1939]
said, we're going to enforce each one of them. The problem here is, if there's an
equal protection problem from my point of view, what Judge Middlebrooks said
it existed on November 6. Justice Souter and Justice Breyer say, there's an
equal protection problem. Clearly, we need to have a judicial officer oversee this.
Florida law allows for that, by the way, which is something the majority just skips
over. Just remand it down there and let them have their time. If they miss the
safe harbor, that's their problem.

P: In fact, Judge Breyer, in his dissent, proposed that it be remanded to the Florida
Supreme Court, to let them make a standard and go ahead and count.

B: That's completely consistent with Florida law. Justice Breyer, in his dissent,
says, you've obviously done your homework, Justice Breyer in his dissent also
says, maybe we were a little bit unfortunate in that remand we sent down to the
Florida Supreme Court, which he signed too. That remand, that first remand is
what I told you earlier in the interview is where politics, at least judicial politics,
first came into this. The first remand on the first case, the November 21st case
that went up and was remanded down to the Florida Supreme Court saying, if
you're applying Florida constitutional law here, you might be violating 3 U.S.C. 5.
That's where the United States Supreme Court, and Justice Breyer notes this in
his dissent, interjected politics into this. That was the first place.

P: Were you surprised that the William Rehnquist [U.S. Supreme Court Justice,
1972-present, Chief Justice of the U.S. Supreme Court, 1986-present] court
decided this case on the Fourteenth Amendment, when they had not done so
B: Let it be said from the rafters that Justice Rehnquist, who supposedly said that
there should be no judicial activism and was a great believer in federalism, in
letting the states do what they want to do, that his epitaph is this case. This is
the most inconsistent decision with what he said this Court was about, what his

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judicial career was about. He chose to stab himself in the heart with his last

P: You could argue that this is an activist Republican court or activist conservative

B: It's an anti-state's rights decision.

P: What was your reaction to Justice John Paul Stevens's [U.S. Supreme Court
Justice, 1975-present] dissent? I thought it was probably the strongest of all the

B: Justice Stevens's dissent could have been written by Al Gore. The main concern
for Justice Stevens was [that] we've just torn away the fabric, we've just torn
away the institutions.

P: He said it undermined the credibility of the court, do you think that's true?

B: Yes. He was talking about the state courts. Yes, of course that's exactly what it
did and that's exactly what Gore didn't want us to do.

P: Is Bush v. Gore a precedent-setting decision?

B: Only from the point of view [that] there are four or five cases in the federal courts
right now saying if there is an equal protection problem, it existed before the
election and let's throw out these machines that don't count votes the same way.
Here's the ultimate irony, at least in Florida. This just kills me, it slays me. What
the United States Supreme Court said is, you need to have a standard. You
have an equal protection problem if you're not going to count votes the same
way, at least in that state, arguably in the nation, but at least in that state. The
Roundheads got together in Tallahassee and passed an election reform bill. Do
we have one machine that the whole state is going to use? No. Gore v. Bush
lives in Florida.

P: You would have thought that would be the first issue they would address.

B: When some of the commission members asked me, I said, you've got to have
one machine. You certainly need to de-politicize the people who are going to be
the referees in your election both Harris and Butterworth. Neither one of those
things were done. Here's the other killer. This whole military ballot issue about
letting military ballots be counted ten days after the election existed because [of]
an agreement with the Department of Justice. We used to have these run-off
elections and it got very confusing as to getting the ballots out and people getting

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their votes back on time and all the rest of it. [The Florida legislature] eliminated
the run-off election and they extended the time period for the absentee ballots to
come back. [Most] every other state, forty-five out of fifty other states, say
absentee ballots, whether they're military or overseas, have to be in by Election
Day. Florida is the only one that you can fax in your vote after Election Day.

P: In places like Santa Rosa County there were some military ballots that were
postmarked November 8, November 10.

B: The Don Van Natta and [David] Barstow [New York Times journalists who wrote
an article on invalid absentee ballots in Florida] story.

P: They didn't have an APO address or were technically non-compliant with the law,
yet they were counted.

B: Absolutely.

P: Isn't that a violation of the Fourteenth Amendment?

B: Of course, of course. What do you want me to tell you? We just talked about
15,000 votes that were discarded in Duval County, 20,000 votes that were
discarded in Palm Beach County and clearly after the election, whether it was
planned or not, people voted in this election, mostly for Al Gore. That's
historically documented right now and clear. Part of what was going on there
was [people saying that] Al Gore doesn't want people in the military to vote.
Meanwhile, somebody is telling people to vote on November 8, November 9,
November 10. There were votes that were faxed in that were counted. Faxed in.

P: In fact, the canvassing boards recounted those votes.

B: By hand.

P: By hand. Which I think is not generally known, is it?

B: The Van Natta and Barstow story touches on that.

P: Once you got the 5-4 Supreme Court decision, your legal team worked up a
twenty-seven page brief that you were going to send to the Florida Supreme
Court. Why did you not do that?

B: Gore called it off. We worked through the night. Dexter said to Gore that he
didn't think the votes were there to reconsider this, given the political climate.
Clearly, we would have created a constitutional crisis at that point in time. Until

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then, no crisis existed. If the Florida Supreme Court had said, read your
Constitution, this is a state issue, you're a non-lawful actor here. At that point in
time, it would have clearly been a constitutional crisis.

P: Gore did not want that.

B: No.

P: The Florida Supreme Court would probably not even hear the case anyway on

B: They actually wrote an opinion on remand without briefs. So I don't know if they
would have heard [it or not].

P: What was that opinion?

B: December 22 [is] the one that I told you about where they specifically said, who's
to say December 12 [is the deadline] in Florida law? They got their last historical
licks in on this.

P: How would you assess the performance of the Florida Supreme Court,
understanding that, as you mentioned, they were overworked with appeals on the
Seminole and the Martin cases and the United States Supreme Court?

B: I think that they worked very hard. I think they were under enormous pressure. I
think that for the most part, they tried to achieve justice. They were clearly
impacted by politics. Not positively, for Gore. I know I'm the last Gore rebel out
there. If you look at what they did on the Fladell case, if [you] look at how the
facts were explained in the Seminole and Martin case. [The] Seminole and Martin
case explained the facts by saying the Republican operatives requested
admittance to the supervisor of elections. They dissembled the facts in Seminole
and Martin [Counties]. I haven't looked at it in awhile, I want to be more specific,
I don't want to be off-the-cuff. Seminole and Martin clearly was an avoidance of
the facts. They took the Fladell case on appeal from Judge LaBarga in the
protest phase of the election when our statute said, if it's going to affect a
statewide outcome, you have to bring the case in Leon County as a contest.
They avoided that issue.

P: The so-called Democratic Florida Supreme Court ruled against Gore on at least
four occasions, right?

B: More than four. Fladell, Seminole and Martin [County cases]. The military ballot
issue they completely ducked. We didn't press it because of the press relations

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that we're getting creamed on. It was an issue, but it wasn't the real issue. The
4-3 decision ditched Nassau County, which was a clear legal issue, because they
didn't want to expose what happened in Nassau County a non-Sunshine Law
meeting with candidates on the ballot [when they] decided to count the first vote
instead of the second vote. They avoided all that in their decision. They didn't
talk about that, they didn't reason any of that away. On the Palm Beach County
vote, they ignored the facts and said, we're not going to recount Palm Beach

P: Therefore, the argument that it was a partisan Democratic court really doesn't
hold any water, does it?

B: You're asking the partisan Democratic person. I think that there are many, many
instances that history can point to where the Florida Supreme Court, for legal
reasons or I think for avoidance reasons, did not rule with Gore. [It did not rule]
on the tougher issues that would have really thrown this election into the territory
it needed to be thrown into.

P: If they had just ruled on Seminole, for example, that would have been enough
votes right there.

B: [In] Seminole and Martin, if they had applied the law that existed at the time, that
would have been more than enough votes.

P: Harry Jacobs filed the original suit against the Seminole County canvassing
board in which he attempted to get all absentee ballots in that county thrown out.
Did you get in touch with him? Did you encourage him to get Gerald Richman
as his attorney?

B: Absolutely. In terms of encouraging [him to] file the suit, that was Harry's choice.
Harry [did] contact me, saying, I have to protest what's going on in Seminole
County. There are irregularities in Seminole County. He had a couple of
irregularities. The supervisor of elections was counting votes, [and] we didn't
want to necessarily discourage people from counting votes. She hand-counted
votes during the machine recount.

P: This is Peggy Robbins [Supervisor of Elections, Martin County].

B: Yes. She was hand-counting votes. Harry said, how come they're hand-counting
votes here and nowhere else? I said, probably because they're going to find
George Bush votes there, Harry. That's okay. We want them to hand-count
votes. We want to get it out that they're hand-counting votes. He also wanted to
protest the fact that she allowed the Republicans and not the Democrats or the

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people for Nader into the election offices to fix the absentee ballot requests.

P: I talked to Peggy Robbins and she said the Democrats did not approach her for
that and they did not need to because the voter identification number had been
put in their requests and not in the Republican requests.

B: That's what the Supreme Court decision says. Thank you very much for
correcting me on that. That's not the point, there might have been other things
the Democrats could have fixed, [such as] their dates of birth. She was allowing
them in to wholesale correct their absentee ballot requests. What do you mean,
we didn't approach her? If she's letting people in, [that means if] you and I are
running for office against each other, your campaign manager gets to go the
supervisor of elections office and correct whatever it is they want to correct
without me even seeing what they're doing. Assuming you're going to do that
kind of procedure in an open and transparent democracy, not in a banana
republic, both sides get to go in. This is exactly what the Republicans were
complaining about in counting votes. We need to see this, it needs to be in the
open. Before the election occurred, they fixed I-don't-know-how-many thousands
of absentee ballot requests.

P: Judge Lewis in his decision said that it was not, in his view, a violation of either
election law or public records law, but it certainly was bad judgment. Did you
agree with his assessment?

B: I think it was a violation of the election law. Certainly it was bad judgment. As
Jimmy Carter [U.S. President, 1977-1981] said, he wouldn't certify this election.
In a Third World country, he said this would not have passed the test.

P: In Seminole County, they actually allowed them to remove the documents from
the office. In this case, the argument is, what did they do while they had those
documents? They are, of course, requests, not ballots, but it still seems

B: I am sure as I sit here with you today, that had the Nader voters and the
Democratic voters been allowed to get their requests, they could have filled
deficiencies in those requests. How many in Seminole County? I don't know.
Would it have been 535? I don't know. That's not the point. It's fairness. The
appearance of fairness and the fact that the person who supervised these
supervisors of elections happened to chair the opposite campaign.

P: It's interesting to note that almost every elections supervisor I talked to, whether
Republican or Democrat, say that Secretary Harris gave almost no guidance to
them on all of these issues during the campaign.

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B: They know that, but I don't. Certainly, it would seem that her best move would
have been to recuse herself from the campaign because of the position she took.
In retrospect, if Bob Butterworth was going to have to enforce laws in some way,
he should have not taken that position or recused himself also. One or the other.
Said my deputy is going to [take over].

P: Clay Roberts, who was the director of the Florida Division of Elections, could
have taken over that position.

B: Correct.

P: There is an argument that the Democrats, in dealing with all of these issues,
were not as organized and as effective as the Republicans. What would your
answer be?

B: We don't have the governor's mansion and Secretary of State's office.

P: Even in the process of dealing with public opinion and appealing the case, the
Republicans had more money, more people on the ground, better organization.

B: The Republicans clearly controlled public opinion from election night on, when
Fox News announced that George Bush had won. The problem with that is a
deeper problem in my opinion, because it was George Bush's cousin who
pushed Fox News to make that announcement. Right from when Mr. [John] Ellis
[hired by Fox News as election analyst, made calls at decision desk] pushed that
announcement on the screen, they were controlling the agenda in terms of the
public perception of that agenda. I think that's a deeper issue right now in
American politics, candidly. I think that's a much deeper issue than just what
happened post-election. MSNBC, CNBC, and Fox News. MSNBC is owned by
Microsoft, a great friend of Democrats [sarcasm]. CNBC is owned by the Wall
Street Journal, another great friend of Democrats [sarcasm]. Fox News is owned
by Rupert Murdoch [media proprietor, owner of worldwide publishing and
broadcasting empire].

P: All conservative.

B: [Their] news content is controlled by Roger Ailes [media consultant for Richard
Nixon, Ronald Reagan, George Bush presidential campaigns; president, CNBC,
1993-1996; chair and CEO of Fox News, 1996-present]. I'm not into the Hillary
Clinton [U.S. Senator from New York, 2001-present; First Lady of the U.S., 1993-
2001] conspiracy deal. Unlike the turn of the century, where William Randolph
Hearst [owner of journalism empire; U.S. Representative from New York, 1903-

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1907] ran all the conservative media outlets, but the New York Times and a few
other independents were able to give an independent view or a liberal view, if you
want to call it that. What's happening in American media today is [that] news
starts with those three [stations] in a news cycle. In this last campaign, my
observation is that news starts with those three channels. By the time it gets to
the broadcast media, whether or not it's true or not, all of a sudden, the 6:30
news is running it forty-eight hours later. It starts there on these talk shows. The
votes have been counted and recounted and recounted. Who says so? Jim
Baker it's right here on my talking points, I'm supposed to say that on this
show. Whether or not that's true, there is no reporter doing an independent
investigation saying forty out of these sixty-five counties haven't even run the
ballots through the machines yet.

P: Jim Baker was just outraged and trashed the Florida Supreme Court, saying that
the court shouldn't decide the election. I don't recall hearing any response on the
5-4 U.S. Supreme Court decision.

B: You heard the response, it was given by Al Gore on December 13. [He said,]
while I disagree with what the court did, I respect the [institution and will obey the

P: Dexter Douglass was very upset in the way Jim Baker treated the Florida
Supreme Court.

B: Gore's concession speech carried the themes that Gore very much saw this as a
test for the republic as well as himself. It's easy to grab power. Any two-bit
dictator can do that. What's hard is to grow the institutions of a democracy. Our
response was the way Gore said. It depends on your view. From my
perspective, from November 8 until November 21, I think I was in Tallahassee for
Al Gore. From November 21 through December 12, I was in Tallahassee for this
democracy. When the voting was shut down in Dade County, I don't think there
was anyone on our team who thought they were there for Al Gore anymore.
There's not anyone who thought that. That was so outrageous to us. It was
such an affront to what we thought this country was about. There was a sea

[End of side B1]

P: Jeffrey Toobin, [author of Too Close to Call: The Thirty-Six Day Battle to Decide
the 2000 Election] in his book, said that many of the lawyers had no personal
contact or affection for Gore, while there was great deal of passion on the other
side. You were, of course, the exception. Did you at one point say that you
would take a bullet for Al Gore?

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B: Jeffrey has that in his book. To me that was a little bit [exaggerated, but]
probably true. Remember I was sleepless in Seattle. People don't realize we
slept one or two hours a night for thirty-odd days. It was hard, physically hard.
This was during a time period that my office had armed guards in it. We had
these people there saying, should I stay? [At times, we were being physically
threatened.] Jeffrey, I think, did a good job, [but] the context is missing. We had
death threats, there were armed guards, there were people throwing things. It
was not pretty. In terms of the I-would-take-a-bullet-for-Al Gore-routine, there
were people, whether or not they were saying it, who were slightly fearful and
saying, what I am doing here? [This] wasn't true on the other side. They didn't
have those kinds of [threats].

P: It was a little easier for them.

B: Right. They just came to work every day. We had people right, wrong, or
indifferent, who did not like what we were doing and were willing to be vocal
about it. I'm not saying overtly, but certainly manifestly physical in terms of the
phone calls, in terms of the protests, those types of things.

P: Other than some of the election reforms, what will the impact of this election have
on the state of Florida?

B: There has been no real election reform, so that's the first problem. [The]
Secretary of State can't recuse herself from the election, none of those problems
have been fixed.

P: Although they did create a provisional ballot.

B: Yes, provisional ballots. At least the voter-purge issue was legitimately
addressed. But the absentee ballot question hasn't been addressed. The
nonpartisan aspect of who judges these elections really hasn't been addressed,
indeed it's been made worse. The Secretary of State is now appointed by the
governor. Those problems are there. I think that there will always be a part of
those of us who were here that... how should I say this? I think we have a very
rich and strong democracy. I think that because of the way that Al Gore handled
this, there won't be any lasting scars on this democracy. I think that's the right
answer. I wish that, to his tribute, we had done greater things with election
reform to what he had done for this. I think and I am hopeful that the effect that
this would have is that the great vast amount of people who do not vote in
elections understand how precious and important their vote is and how radically
different the future of this country is with one person in power.


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P: Do you think it's going to increase voter participation?

B: That's my hope. I don't know that it would. You're asking what effect will it have.
I think in terms of the institutions of civil society, it won't [have] a great impact
because of the way Gore handled it, which was, I guess, part of his strategy. In
terms of what I hope it will do is impact the way people understand how important
their vote is.

P: How did this experience impact your life?

B: As Jeff Toobin said in his book, recounts change lives. This is a searing event.
You grow up thinking, in a pollyanna world, that your votes counted, the winner
gets the most votes, judges judge according to the facts and the law. Living
through those last thirty-five days, you realize how close we are at any given time
to becoming an anarchy if responsible people don't understand the wizard behind
the curtain. If you tear down the curtain completely and everyone sees the
wizard and understands that the wizard is fallible and can be killed, we can
destroy this democracy in an instant if we don't treat it with respect. The
difference between what Jim Baker did and what Al Gore did is part of this that I
will always, always, always take away. You're either going to build up these
institutions, you're going to respect these institutions, you're going to abide by the
rule of law, you're going to respect how fragile a democratic society can and is
and will always be, or you're going to tear it apart.

P: Did this experience undermine your optimism and faith in the system?

B: Certainly, there's a part of me that is unbelievably frustrated by the inability for
people to understand everything that happened here. I'm very frustrated. At the
same time, my faith is renewed by watching Al Gore concede and say, this is
much bigger than me. Basically that's what he said. This is a lot bigger than me
and this is a very fragile deal. If you don't understand that, many of you don't
understand that, but I do. I do.

P: A lot of pundits said that was by far and away his best speech of the campaign.

B: I think it probably was. Most of the campaign he had to defend Clinton's [sexual
indiscretions] and Ralph Nader. No one wanted to talk about the campaign.

P: What physical toll did these thirty-five days have on you?

B: It was enormously physically taxing. My family, my children, the Dade office, the
Broward office, the Tallahassee office were the fortress for the Gore recount. It
was financially taxing, it was physically taxing. It was everything you could think

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P: Are you glad you had the experience in spite of all that?

B: It was a unique experience. I learned from it and obviously life is about
experiences, so overall, yes. Am I glad I had it? I don't know if many people are
glad they go into a battle. I was tested by it. I hope I passed the test.

P: Is there anything that we have not discussed that you would like to talk about?

B: I think that you did a very good job. As I said, to me the important thing to leave
[with] is how fragile this all is and how increasingly fragile it will become as there
become more of us and people can't touch their leaders and can't touch their
institutions. If you want to globalize American politics, if you want to do what
Adolf Hitler [Chancellor of Germany, 1933-1945; leader of Nazi party in
Germany, 1921-1933] did, he was popularly elected. So was Ayatollah Khomeini
[Iranian head of state, 1979-1989], so was Fidel Castro [Premier and President of
Cuba, 1959-present] [not so, ed.], so was Joseph Stalin [dictator of the Soviet
Union, 1928-1953] [not so, ed.]. All of these people are democratically elected.
Don't make any mistake about it. They could win a popular election during their
times in their countries. That's not the deal. The deal is to have a constitutional
democracy that respects individuals and institutions that cultivate that respect in
individuals, including each and every person's vote in that democracy. Whether
or not you're going to have leaders that help to strengthen those institutions or
tear them down. I said it a few times, [but] it's worth repeating, because that's
what history should get out of this. You can tear this up in two seconds. It could
have been torn up if it wasn't handled by responsible people like Al Gore and
Warren Christopher. As much as people might tactically disagree, they knew
what the tactics are. These are not stupid people, they chose consciously to do
things that would strengthen the institutions, as opposed to subpoenaing Kathy
Harris, which is what Dexter Douglass and I wanted to do. They said [it] would
have [done] great harm to the institutions of government to show how partisan
this is. To recuse Sanders Sauls this was done by others who we opposed.
They wanted an immediate game as opposed to understanding the long-term
view of whether or not you're strengthening or lessening these institutions.

P: On that note, we'll end the interview. Thanks very much.

B: You're welcome.

[End of interview]


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