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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida
Abstract of an oral interview done on May 15, 2002 in Tallahassee, Florida. The
interviewer is Dr. Julian Pleasants, professor of history at the University of
pp. 1-7 Mark Herron mentions his educational background at Florida State University
and career background practicing law in the state legislature and various law firms. He
discusses the first meeting with the Gore team on November 8th and the strategies they
agreed upon at the beginning such as asking for recounts only in Volusia, Broward,
Palm Beach, and Dade counties, and the decision not to go to contest sooner.
pp. 7-10 Herron comments on Republican advantages such as organization, finance,
and political majority at the time in Florida. He comments on Republican strategy as
being "win at all costs" and "blow up the process".
pp. 10-14 Herron feels the butterfly ballot was legal. He feels responsible for putting
Buchanan on the ballot and regrets it. Herron agrees with Judge Middlebrooks'
decision that there was not a federal issue and that the recounts were a state matter.
He also comments on the Herron memo that he wrote on overseas ballots including why
he wrote it, what was in it, and the Republican response to it.
pp. 14-19 Herron discusses the Republican response further in terms of the public
relations battle that ensued and the lawsuits regarding the military ballots. He
comments that the Democrats tried to stay with the process of the law while the
Republicans did anything they could to win. He then discusses planning to go to Judge
Terry Lewis to ask for an over-vote manual recount the day the U.S. Supreme Court
stopped the recount.
pp. 19-27 Herron comments on Lieberman caving in on Meet the Press regarding the
military ballots, stating he got ambushed on the show and it did damage to the
Democrats. Herron feels there was a dual standard with military votes and everybody
else's votes. He discusses what the law was with regard to overseas ballots and how it
was changed in the 2001 election law including hypertechnicalities and interpretive
differences. He also comments on the Butterworth standard with regard to overseas
votes. Herron does not feel the counting of illegal military votes cost Gore the election
and he comments further on the illegal votes.
pp. 27-32 Herron assesses the performance of Katherine Harris as driven by the desire
to see George Bush elected president. Also, he was surprised the United States
Supreme Court intervened. Herron discusses the Florida Supreme Court 4-3 decision
to count the under-votes statewide. He did not feel that the court was changing the law
by changing the dates. Herron comments that conceding that the safe harbor
December 12 date was a "magic date" was a tactical error.
pp. 32-37 Herron comments on the 68-31 House vote to "seat electors chosen by the
legislature" disregarding the final recount and states it set a dangerous precedent by
putting politics over a process of law. Then he comments on the U.S. Supreme Court 5-
4 decision and states it did not reflect the law. Herron talks about the final memo they
were asked to do to canvass the over-votes as well when they realized some of them
were Gore-Gore votes, although it was never filed.
pp. 37-40 He comments on how he feels the election impacted the state of Florida. He
comments on the media's coverage of the events stating the media broadcasts
anything, true or not. He feels the Republicans won the public relations war, but that it
did not cost them the election. He comments briefly on Dade County's reluctance to do
the recount and the threats involved during the recount. When asked how the
experience impacted him and his career, Herron replies that he has gained a deep
distrust in the media, he is more determined in his politics, and he dislikes Republican
pp. 41-46 He discusses the Florida Election Reform Act of 2001 stating the provisional
ballot is still not fair, overseas absentee ballot standards are too lax with invitations to
fraud, and there are too many problems with touch screens. He comments on the doing
away of the second primary as politically motivated manipulation of the process. He
also comments on the Harry Jacobs v. Seminole County Canvassing Board case and
the Martin County case and agrees with the decisions made in them.
Interviewee: Mark Herron
Interviewer: Julian Pleasants
Date: May 15, 2002
P: It is the 15th of May  and this is Julian Pleasants. I'm in Tallahassee,
Florida, with Mr. Mark Herron. Give me your legal background, because I
understand that you are an expert in Florida election law. Tell me where you
went to school and what kind of experiences you have [in practicing law].
H: I went to school, undergraduate, at Florida State University. I went to law school
at Florida State University, graduated from law school in 1975. At that time, I
was working in the legislature, in the House of Representatives. I continued to
work in the legislature after I graduated from law school until 1984. In 1984, I left
the legislature and went into private practice here in Tallahassee with the law firm
of Moffitt, Hart and Miller at the time. That law firm eventually morphed into
Moffitt, Hart and Herron. In the early 1990s, it merged with the Akerman
Senterfitt law firm out of Orlando and Miami at the time, so it became Akerman
Senterfitt, with offices in Tallahassee, Tampa, Miami, and Orlando. I practiced
with Akerman Senterfitt initially, the first time, until, I want to say 1997, when
Governor [Lawton] Chiles [Florida governor 1991-1998 (died in office); U.S.
Senator from Florida, 1971-1989] asked me to represent him in an ethics matter.
The firm had a conflict, I opted to leave the firm to represent Governor Chiles.
P: Was this about the hunting trips?
H: Yes. I opted to leave the firm to represent Governor Chiles rather than turn down
that representation. After the Governor died, about six months after the
Governor died, I rejoined Akerman Senterfitt. I stayed with Akerman Senterfitt
until November 7, 2000, at which time I went out on my own again. I stayed out
on my own for about thirteen months. In December 2001, this firm which I'm
currently employed with, Messer, Caparello and Self, we reached an agreement
on me coming in as of counsel to that firm.
P: The second time you left Akerman, my understanding is that they were not
pleased that you were willing to work for the [Al] Gore [unsuccessful Democratic
presidential candidate, 2000; U.S. Vice-President, 1993-2001] campaign.
H: I think that's probably a fair statement. They had sent out an e-mail to all the
partners and members of the firm several days after I had been involved in
working with the Gore recount effort [saying] that they didn't want anybody
working on either side of the matter. At which time, I said, guys, I've been doing
it for four days and I guess you might want to tell them that I left on November 7,
because I'm going to do this.
P: Explain to me when you were first contacted and who contacted you.
H: Election night, I was just sitting there like everybody else watching the election
returns and even though at the time I had done a lot of work for the Democratic
Party and was counsel to the Democratic Party with respect to several matters,
on that night I stayed home, watched the returns. After 10:00, when Florida fell
out of the Gore column, then into the undecided column, I went to bed. I got a
call around 2:00, woke up, some folks in the Democratic Party wanted me to do a
little research on some issues, which I did, and got back to them about 2:30 and
went to bed again. At 4:30, my phone rang and Congressman Peter Deutsch
[U.S. Representative from Florida, 1993-present; Florida state representative,
1983-1993] called me and told me to get up, get out of bed, you're going to work.
I had done some work for Peter Deutsch over the years, so it wasn't like I didn't
know who he was, it wasn't like a call out of the blue. He said, I'm going to put
Ed Rendell [candidate for Pennsylvania governor, 2002; chairman, Democratic
National Committee, 1999-2000; mayor of Philadelphia, 1992-1999] on the
phone, who was the chairman of the Democratic Party at the time. Mr. Rendell
got on the phone and said, I need for you to work with the recount effort here in
Florida, would you do that? I said yes. I told him that I had to be in Fort
Lauderdale on November 8 to testify in a trial down there, and as soon as I got
back from Fort Lauderdale, I'd be more than happy to work and get together with
the folks with the recount team. I got up, I did some work. I did some surveys,
which I do every morning, read all the Florida newspapers as to what was
happening in the election, looked at some of the election laws. [I] talked to some
of my lawyer friends at the time and said, here's what we need to think about and
again, went off to Miami, Fort Lauderdale, did my testifying in the trial, and that
night I came back and met the folks on the recount effort for the first time.
P: With whom did you meet on the night of November 8th?
H: The night of the 8th we met at the, we call it the strip mall. The local coordinating
campaign office had closed, they had shut down the operation, and the only
office that the Gore folks still had in town was their local campaign office, which
was located in a strip mall off U.S. 27, down on the Parkway, and so at that time I
met for the first time with Mitchell Berger [attorney for Al Gore in 2000 election].
P: Was Ron Klain [chief of staff to Vice President Al Gore; head of legal operation
for Al Gore in 2000 election] there?
H: Yeah, Ron Klain, Mitchell Berger, Nick Baldick [political strategist and National
Deputy Finance Director, Gore 2000 campaign].
P: Was Michael Whouley [political advisor to Al Gore] there?
H: Whouley was not there, but one of his associates was there, Charlie from
Boston, there were about six or eight people.
P: I know Chris Sautter [attorney for Al Gore in 2000 election] was one.
H: Chris Sautter was there and I think the other gentleman that was there was the
lawyer from Virginia who was the recount expert, Joe Sandier [general counsel
for the Democratic National Committee] was there from the Democratic National
Committee. My understanding [was that] I was working for the Democratic
National Committee in the Gore and recount operations. So we had Mitch
Berger, we had Nick Baldick, we had Sautter, we had this other guy who is now
in partnership with Sandier in law firm practice.
P: Who was in charge of this meeting?
H: I would say that it wasn't something that was, you know, it was like okay,
achtung, I'm in charge. My general sense is that between Nick Baldick and Ron
Klain and Mitchell Berger, they all were the top three guys in terms of making the
decisions. We sat there and talked about options, we sat there and talked about
law, and it was clear to me at the time that whatever this group decided would be
taken back to other Gore folks, including [Bill] Daley [campaign manager for Al
Gore in 2000 election; Secretary of Commerce, 1997-2000] and [Warren]
Christopher [U.S. Secretary of State, 1993-1997; Deputy Secretary of State,
P: So Warren Christopher and Bill Daley were already [in Tallahassee], but they
weren't at this meeting.
H: As I understand it, they were in town at the Governor's Inn, but they weren't at
this meeting at the strip mall. We sat down, we talked about what Florida law
required, what options we had under Florida law at the time.
P: What was the general thrust of the strategy in the beginning?
H: First it was trying to understand Florida law. All these folks were coming from
different backgrounds in terms of different states and where they've done these
kind of recounts or concerns about recounts. But some of these guys had done
a recount effort in a state and they'd already done this stuff. So under Florida
law, we had a discussion about do[ing] something statewide, what can we do
statewide? And Florida law didn't have a remedy for a statewide recount. It
P: You had to apply it individually to each county?
H: Each county, and that was the issue. We had to look at each county, and you
had to file a petition with the canvassing board within seventy-two hours of the
polls closing to do that. And you had to state what the problem was. Like I told
you before, earlier that morning I sat down and looked at all the newspapers and
based on what we saw in the newspapers on Wednesday, the day after the
election, we saw that there were problems in Volusia [County], there were some
problems in Leon [County], there were some problems in Dade, Broward, and
Palm Beach [Counties]. Other than that, looking at the major newspapers
around the state, I'm not saying I read every newspaper, those were the
problems that were out there, those are the ones we saw. We didn't hear about
problems in Duval at the time. We didn't hear about problems in Pinellas at the
time. We didn't hear [about] problems in Hillsborough at the time. Within that
first twenty-four hours or so, we were again focused in on four or five counties.
P: I understand that at this point, although Gore has seventy-two hours to demand a
recount, you indicated that he needed to do it right away.
H: Well, yeah. Without a doubt. Again, you have to go back to the time. You have
to do it within seventy-two hours. November 10, 2000, was a holiday. We didn't
know at the time that every governmental agency was going to eventually stay
open twenty-four hours a day for people to file things. So we had to have
everything in place and done by Thursday, at the close of business, at 5:00.
P: So you really had twenty-four hours to decide.
H: Yeah. From the time that we met on Wednesday night, we had to put everything
in play by Thursday at 5:00. At that time, it was decided that based on what we
knew at the time and what the law was, we would file petitions for manual
recounts in four counties.
P: The automatic one-half of 1 percent count had been triggered.
H: That's correct.
P: And this was specifically your attempt to get a manual recount in four counties,
H: That's correct.
P: Why not Duval?
H: We didn't know, at the time, of the Duval problems. We didn't learn of the
magnitude of the Duval problem, [until], I want to say, on the morning of
[November] 10th or maybe even the 11th when we had our first discussions about
Duval. Mike Langton [Gore spokesman] brought that issue to our attention. One
of the problems with the Duval situation, as we came to understand it, was that it
was an over-vote situation as opposed to an under-vote situation. If, in fact, it's
an over-vote where two people have clearly voted for two separate candidates,
again [working with our] knowledge at the time we've subsequently learned
about the problems with the Duval ballot and the split between two pages and all
that kind of stuff.
P: And the instructions were to vote every page.
H: All that. But at the time, we're working on, it's an over-vote problem, it's people
voting for two separate [candidates] for a president. We couldn't solve that
problem in requesting a hand count, but we didn't know what the specific
problem was within the short period of time we needed to deal with it.
P: The focus is really going to be on the under-votes.
H: That's correct. At this point in time, yes.
P: You've picked the four counties. Now, of course, the Republicans are going to
argue that Gore is cherry-picking, picking the counties where he's likely to get the
most votes, but in any political campaign, wouldn't that be the logical approach?
H: It would be, but that wasn't necessarily what was driving us at the time. But that
discussion did happen, even among ourselves. Volusia [County] was focused on
because of the issue, and only because of the newspaper report that the
numbers changed at a period of time during the evening. It went from this way,
to that way, and there was no explanation for it. So the feeling was, we have a
concern about the viability and the reality of the numbers. That's why we wanted
to go there, because of this little computer burp.
P: Although that was later explained and corrected.
H: Yeah, exactly. But when you're looking for the information that's available at the
time, [we see] this strange computer anomaly, [with] numbers flipping [with]in
seconds, and we wanted to check those numbers, we wanted to make sure. The
only way to check that is do it by hand count, and the Volusia people wanted the
numbers to be right, too, and they felt that they needed to do that. Dade,
Broward, and Palm Beach [were the other counties where we requested a
recount]. Palm Beach and Broward [are] theoretically vote-rich areas for Gore,
theoretically. And I think there's a lot of politics in that. But going back to the
information we had and the standards that we were trying to look at, we only had
information that was problem in Palm Beach with respect to the butterfly ballot
and whether people voted the right way. There were problems in Broward,
because people were turned away from the polls and people said that they didn't
have any confidence [their votes would be counted]. There was stuff [going on]
at the time that [made them] think their votes were [not] counted. Dade County,
the same kind of thing. Dade County, though, was a mixed bag. There was a
great deal of discussion among the political guys as to whether to go to Dade.
We may be hurting [in] Dade just as much as we're going to be helping [in] Dade.
P: It was a close presidential vote in Dade.
H: Yeah. And the population demographics are just different. The performance
demographics in Dade are just different than Palm Beach and Broward. This
discussion is happening at the legal level as well as at the political level. I think
the decision was made that, if we're going to ask for it in Palm Beach and
Broward, we'll take our shots in Dade. But recognize that's all the information we
had at the time. We didn't have the knowledge of the things that we learned
subsequent to the first seventy-two hours or twenty-four, forty-eight hours. We
didn't have those problems in other places that would cause us to ask in those
P: Both Mitch Berger and Dexter Douglass [attorney for Al Gore in 2000 election]
talked about whether it would be advisable to go directly from the protest to
contest the election. Was that discussed and what's your view of that? Should
you have gone to the contest sooner?
H: I don't think so, and here's why I think that. Had the protest situation and the
manual recount situation been allowed to proceed unimpeded, and maybe I'm
looking at this in a very idyllic world [in which] there's a process of law, let the
process of law take its [course], and had we come out with the numbers on top if
the whole process had gone through [things might have been different]. [If] they
[had] said, these votes weren't counted here and these votes weren't counted
here and all of a sudden Gore is the winner, the shoe would have been on the
other foot for the Republicans to file the protest. I don't think that any of us really
anticipated, at the time we made these initial decisions, the war that it would
become. The stonewalling or the battle over standards or, for lack of a better
term, the civil disruption in the Miami-Dade County courthouse when they're
trying to count the votes, and the fact that they're shutting it down. I really don't
think that any of us really [anticipated that]. At least I didn't, [but] maybe I'm a
babe in the woods.
P: How could anybody anticipate it? It never happened before.
H: I'm sitting there thinking there's going to be a process of law that's going to
happen, because they've had some of these types of things in Florida before.
They've had recounts and they've had manual recounts and people go down and
look at the chads and they do that. It happened in Polk County.
P: They've had Florida Supreme Court decisions about those issues.
H: Right, so it's not like the end of the world. But I don't think any of us really
understood or contemplated that it would become the thing that it did.
P: Dexter Douglass [attorney for Al Gore] saw this chaotic process of trying to get
the ballots counted as a war, at one point he said, what we need to do now, now
that we have all these problems, let's go to the contest, sooner than they actually
did. And of course, in hindsight, the time factor is going to be significant.
H: Yeah, and after that initial round of discussions about [doing] these manual
recounts and drafting the initial manual recount petitions for delivery in the
counties by various folks, I moved on to something else. I wasn't there in the
continuing discussions as to the timing of going to the contest stage of the
proceedings. Clearly, with hindsight, we might have done something quicker.
But recognizing, and I think you have in some of your earlier comments, that
we're focusing on a series of battles: local, state, Supreme Court, federal,
political, the legislature. Everybody's involved in every little battle somehow, so
in hindsight, yeah, because the fact that we started the contest so late did
adversely impact, at the end of the day, on our ability to prevail. It adversely, in
my view, impacted upon the way we did things in the contest proceeding in court.
Frankly, that probably wasn't the best way to try a case, but we couldn't fiddle
around with three weeks of putting on every Nobel Prize laureate guy we needed
to have on there to establish our case. We had to do this quick, down, and dirty,
and move on. I don't know how to respond to that other than, at the time, I think
we were just doing the best we could.
P: At this point, who was making the final decisions? My understanding is that Ron
Klain was sort of the intermediary to Al Gore and that Gore was involved in all
these decisions. Is that your understanding?
H: [Thats' my] understanding, but I can't back it up from anything] factual. I think
that Ron Klain would get the best thinking here, along with David Boies [attorney
for Al Gore in 2000 election], and they would get on a phone conference with
folks in the Gore campaign. Whether Gore was there or not, I can't tell you.
There was another group that Klain was the liaison or the link to that actually
made the real decisions. For example, on the military or the overseas vote
issues, there was a conscious decision that frustrated a lot of the lawyers, that
they didn't want to actually fight on that. They made some conscious decision to
take their lumps and I know that there were some folks that were very upset
about that. A phrase I learned in this whole thing, because I'm not a federal guy,
[was], "that's not at my pay grade." The lawyers who had a federal background,
they would say "that decision is not in my pay grade" and we just marched along
with it. There was this other group that actually made the final decisions.
P: One comment from both from the media and people like Jeff Toobin [author of
Too Close to Call: The Thirty-Six Day Battle to Decide the 2000 Election] who
wrote a book about this election, is that the Republicans, from the beginning,
were better organized and better financed. I was interested to note that at 2:00
in the morning, you guys were getting organized. Is that assessment true?
H: It's probably true. In politically sophisticated firms in Florida, there was a great
deal of concern, I would think, about working for the Gore folks in an open
manner. It was much easier for any law firm that "wants to be politically
connected" to be the firm of the Republicans, recognizing you have a Republican
governor, who is the brother of the President, recognizing you have a Republican
legislature at the time.
P: The two lawyers, Joe Klock [attorney representing Katherine Harris during 2000
election] for Katherine Harris [Florida Secretary of State, 1998-present; Florida
state senator, 1994-1998] and Barry Richard [attorney for George W. Bush in
2000 election] are Democrats, is that right?
H: I have no idea what their party affiliation is. I know in the past that Barry Richard
represented Democrats, but he's represented Republicans for a long time. In
fact, I think one of the pieces you may have read is [that] he represented Jeb
Bush [Florida governor, 1999-present] in his 1998 campaign when I was
representing Buddy MacKay [Florida Lieutenant Governor 1991-1998; acting
Florida governor 12/98-1/99; U.S. Representative, 1983-1989], so he's been
around. But I think firms make conscious decisions to do one thing or another
and maybe this is based on my own personal experience and maybe it's based
on some other things that I've heard through the grapevine. To answer your
question, I think they're better financed because Republicans have more money
and the business sector basically did that. I could tell the difference just in the
support that was given by politically connected people here, our operation versus
theirs. Their lawyers were fed three times a day by local special interests, we
weren't. Not to say that both sides deserved to be fed, but I can just tell you that
the power of the incumbency, the power of the local governor was used in such a
way that I think it ended up being [that] their side was better organized. For
example, we ran [our operations] out of Mitch Berger's firm over here. At the
time, I wasn't in this office space, I was down on the street, but even though I
was working in the recount office, I'd come here and work with the lawyers. One
day I said to the lawyers, you recognize that one of the lawyers in this firm, the
Messer firm, is representing your opponents in court. They said, no. I said,
yeah, they're sitting over there. I said, you're here in the same space as your
opponents. Next day they were gone. We were fighting the best battle we could.
I think they were better organized, but every big law firm in the country was there
for them, as well as most of the ones here in town.
P: Somebody argued that the Republicans had the home court advantage because
they had a Republican governor, a Republican legislature, and the Secretary of
State was a Republican. How much impact do you think that had on the
H: I think it had probably a significant impact, but at the time, Secretary Harris was
doing everything she could to frustrate the local counts with those advisory
opinions. She was doing everything she could to make sure, I think, that the
votes weren't going to be counted. We only learned of the significance of the
home-field advantage of the legislature later on, when they basically said they
were going to throw out the votes of all the people and they were going to
appoint the electors. I think the Governor basically used all the powers he could
to make sure everybody toed the line and didn't provide the kind of assistance
that, in a perfect world, law firms could or could not. You know, lawyers are
supposed to represent clients zealously and not be afraid of the consequences of
doing those kinds of things. I just think that kind of power in a town like this, that
kind of lives and breathes by access, that was a very big home field advantage. I
know for the first year, in 2001, I [felt] a little radioactive when I [went] over to the
Capitol, in certain quarters. Because I still try to lobby.
P: Describe what Tallahassee was like during all of this turmoil.
H: It's like something I've never seen before and probably will never see again. We
were overrun by the media, everybody knows that. You have to look at different
points in time, to tell you the truth. In different points in time, I think it had a
different feel, a different kind of feeling. At the beginning, I think everybody was
just kind of doing their thing, trying to develop [cases]. After the overseas vote
thing happened, you got a bigger division among folks. After the Florida
Supreme Court said, let the votes be counted, it got more strident in terms of the
conflict between the two groups. Once the United States Supreme Court said, let
not the votes be counted, I think people's positions just basically hardened and
we'll live to fight another day. I think probably the most difficult times that I saw
was when the Florida Supreme Court said, let the votes be counted, and people
that I thought were rational people were running around doing silly things trying
to preclude that from happening, whether it be lawyers sitting in the various
counties obfuscating, trying to frustrate the efforts of the ad hoc groups that were
set up to count those votes.
P: So at this point, it was win at all costs?
P: Someone mentioned that part of the problem had to do with the fact that Jim
Baker [U.S. Secretary of State, 1989-1992; campaign manager for President
George Bush, 1988] made a lot of strident comments and denounced the Florida
Supreme Court. I don't guess that helped the general tenor in the city, did it?
H: No, it didn't. It didn't help the city, the state, or the country, to tell you the truth. I
think the remarks of Mr. Baker were basically focused on the issue of, we're not
going to abide by the rule of law, we're just going to obfuscate, we're going to
stonewall, and we're going to take this things as far as it goes and win at all
costs. He did not facilitate. Looking in hindsight, that was their strategy. From a
legal point of view, they had the easier task.
P: They were ahead, too.
H: Yeah, by 500 [votes], theoretically. See, you'll never convince me that they
actually won. On the stat[istic] boards, they would have had about 57 [more
votes], but had the votes been counted, they wouldn't have been [ahead]. Their
whole strategy was to blow up the process, which they did. To blow up the
process, which they did, in hindsight, they couldn't view the process as legitimate
because if the process is illegitimate, it's easier to take those kinds of steps and
make those kinds of statements that they made.
P: I thought it was interesting that after the 4-3 Florida Supreme Court decision,
Baker denounced the fact that a court would decide an election, but we didn't
hear that comment after the U.S. Supreme Court [5-4] decision.
H: Frankly, if Baker was stunned by the 4-3 decision, I was stunned by the 4-3
decision. In fact, I remember exactly where I was when I saw the decision and I
said, we're not going to count the votes, and when they read it and said, we're
counting the votes, I just about fell out of the chair.
P: I know you were not specifically involved in the butterfly ballot case in Palm
Beach, but I'd like to get your response to it. That case went to the Florida
Supreme Court to challenge the legality and the court ruled that, in fact, the ballot
was legal. What was your view of the legality of that ballot and the impact it had
on the election?
H: I think the ballot was legal. When you say legal, it's an open-ended question. I
think it was a legal ballot. I think it did cost Gore the election, to tell you the truth,
because of the confusion factor out there. People thought they were voting for
Gore, when in fact they were voting for somebody else. But to the same extent,
there are so many but-fors in this election. But for Duval County, but for throwing
out the thousands of over-votes where people wrote in Gore or circled in Gore
and wrote in Gore, but for that. There are just so many but-fors here.
P: Ralph Nader [Green Party presidential candidate, 2000; activist; author, Unsafe
at Any Speed]?
H: Ralph Nader. But for that 1.4 percent of the people in the state of Florida that
voted for Ralph. I could just go on and on and on.
P: In Palm Beach County, 96 percent of the people voted correctly. So, while it was
a confusing ballot to some four percent of the voters, it was not confusing to the
H: Yeah, and you know one of the things that I have lived with for a long time is
[that] I put Buchanan on the ballot. I represented Buchanan and put him on the
ballot. I'd asked the Gore people whether that was something I could do and
they said yes, and so I did. As a Catholic, you carry around a lot of guilt from
time to time, [and] I talked to Clay Roberts, the director of the [Florida] Division
of Elections, and I said to Clay, in addition to some of these other things, I've sat
here and thought about that. He said, no, you should take that one off your list of
things to worry about. There would've been somebody in that slot. It might not
have been Buchanan, it would have been [John] Hagelin [Natural Law Party
presidential candidate, 2000] because that was the fight between the
Hagelin[ite]s and the Buchanan[ite]s. [There are] a lot of these but-fors. I think a
butterfly ballot is legal, was at the time. It's just a lot of these other what-ifs.
P: Before we get to the essence of the interview, which is going to be the military
ballots, I wanted to ask you about Judge Donald Middlebrooks' [U.S. District
Court] decision. The [George W.] Bush [U.S. President, 2001-present; Texas
governor, 1995-2001] people are the first ones to actually file a lawsuit, and they
file in Middlebrooks' court to stop the recount. What was you assessment of his
decision in which he basically said that this first is a state matter and we've
always had differing standards in sixty-seven counties and there's not a federal
H: I thought it was a good decision. Everybody is going to look at me and say, hey,
you're a Gore lawyer, it ought to be a good decision. I thought it reflected the
law, because if you magnify that there has to be a uniform standard of everything
around the country, then what are we doing?
P: I want to get to these military and overseas ballots first and of course we know
about the Herron memo. Talk about how you researched that memo and wrote
that and at whose behest you wrote it.
H: One of the things we discussed at the first meeting, that November 8th meeting,
was the fact that under Florida law, at the time, we were going to be counting
ballots from overseas voters for the next ten days. These other people from
various states, some of their states don't do that, some of them have different
rules. They wanted to have an understanding of the rules with respect to these
overseas ballots. They wanted to have an understanding of what it takes to
challenge these overseas ballots. That's what the memo was intended to do, it
was intended to present the rules with respect to counting overseas absentee
ballots. What had to be included on the envelopes or things like that, and what
were the grounds for challenge, for any overseas ballots, not just military ballots.
P: In essence, what you were doing was spelling out Florida law.
H: Yeah. There were some issues in there that when you try to explain to
somebody and you say [that] under Florida law, at the time, they had to have a
postmark from an APO [Army Post Office] or FPO [Fleet Post Office] postmark.
I'd say that to somebody and they'd look at me like, what are you talking about?
What's an APO postmark, what's an FPO postmark? We got the postal
regulations and attached them to the memo. We did all that stuff so the reader
would have the understanding that an APO postmark has a certain zip code on it
and it's coming from an Army post office, and an FPO is coming from a fleet post
office and has a certain zip code on it, whether it's [from] Europe or Asia, [the]
Atlantic versus the Pacific. All that was there. That's exactly what it was. It was
just there to set forth the rules.
P: Who was this done for and to whom was it distributed?
H: We're around November 8, 9, 10. We've done the request for the recount and
then all that litigation's going there. We all understood] that some time between
the 7th and the 17th, the sixty-seven supervisors are going to have meetings in
their separate counties, [with] their separate canvassing boards, and they're
going to canvass overseas ballots. We know at the time that the election is very,
very close. We knew that these overseas absentee ballots may change the
results that are already out there, the 57-[vote] difference on the popular vote.
P: Did you expect Bush to get more of the overseas votes?
H: Not yet. That's a potential thing, but not necessarily, because at the time, we
hear about a gazillion votes coming from Israel, a gazillion votes coming from the
military guys. If both camps are thinking about it, they're thinking about there's a
gazillion votes coming from Israel, we're thinking there's probably a gazillion
votes coming from the military and what are the rules? What are the rules that
apply to Israel? And that's what this memo is intended to do. But we know the
canvassing boards are going to meet on or before the 17th to look at these
ballots. We know that we have to reduplicate election night in these counties,
with people going in making sure that they're canvassing the ballots correctly.
There are going to be Republicans there, there are going to be Democrats there,
there's going to be the canvassing board there and we're going to fight about
these overseas absentee ballots. The memo was initially drafted to inform our
people at the highest levels as to what the law was. It was then utilized to inform
our people, whether they be political or lawyers, primarily lawyers, who were
going to be attending in the sixty-seven counties, the canvass of these overseas
absentee ballots. If they see one that comes in with a domestic postmark, it's
out. If they see one that comes in without a postmark, it should be out. If they
see one that comes in dated after the date of the election, it should be out. All
those kinds of things. That's what it's there for. It was transmitted to the lawyers
by fax who indicated they were going to be attending and participating in this.
Prior to the 17th, we had telephone conferences, three or four of them, with the
lawyers that were going to attend in the sixty-seven counties.
P: You had somebody in every county?
H: We tried to. I don't think we did, I think there were a couple of counties where
somebody took a powder for a variety of reasons. I think Pasco [County] was
one where the guy that we thought was going to be there didn't show up. We
endeavored to establish a network of folks in every county that were going to be
there. It got so bad as we had a guy named Mike Moscowitz, who's a very
politically astute Jewish lawyer from Miami, covering Glades County. He
volunteered and that's where they sent him, he went to Glades County. And we
had lawyers from Philadelphia, the guy from Pennsylvania was out here in
Jackson County, it's just not a nice fit. We couldn't get lawyers from Florida to
cover some of the counties, so we had lawyers from Alabama working some of
these counties out in the Panhandle. The memo was designed to explain to
them what the law was. It was sent to them and we had some phone call
conferences on how to do this stuff.
P: How did this memo fall into the hands of the Republicans?
H: I can only tell you from what I've read in the paper. Somebody gave it to Jason
Unger [attorney for George Bush in 2000 election; husband of Jeb Bush
campaign manager Karen Unger], but other than that I have no idea.
P: According to my sources, as soon as the Republicans saw this, they said this is a
PR [public relations] coup, because Gore has been saying, count all the votes,
and now he's going to say we're going to apply these hypertechnicall" legal
restrictions and try to stop the military from voting.
H: It was a great exercise of fiction in the sense that they got the memo, spun it their
way, and created this furor. They had people in the streets doing all this crap
when the thing didn't even talk about military votes or knocking out military votes.
It was a standard that we intended to apply to every vote and we did.
P: Part of the difference is that it applied to all overseas ballots. They made the
emphasis on denying the military the right to vote.
H: They defined what it said and it never, ever got really cleared up in the
framework or in the time period where it counted. Joe Lieberman [U.S. Senator
from Connecticut, 1989-present; unsuccessful Democratic vice-presidential
candidate, 2000] blinked on Meet the Press, Bob Butterworth [Attorney General
of Florida, 1986-present] blinked when he was dealing with it, Bob Graham [U.S.
Senator from Florida, 1987-present; Florida governor, 1979-1987] blinked when
he was dealing with it. But if you look at the other side, Clay Roberts looked at it
and said, this is an inaccurate statement of the law, the Republicans had the
same memo internally, I learned.
P: It was very clear, from a strategic point, that you were after these military ballots,
H: We were after overseas ballots, and I'll tell you the answer to that. I understand
what you're trying to say there. While this was going on, on the 17th, I'm taking
phone calls from any of our lawyers at a canvassing board that we're dealing
with. They would call in and say, I got this overseas absentee ballot, it doesn't do
this, it's from a Democrat, it's from a certain country, it's not necessarily a military
vote, do you want us to relax our standard? [I said], no. Our standard is our
standard. So the answer to your question is, yes.
[End of side Al]
H: Would the memo have an impact on overseas absentee ballots from the military?
Yes. No doubt about it. But we applied it in such a way and we did it, conscious
[of the fact] that it would even knock out votes that we thought were ours. And
we dealt with that.
P: Let me talk a little bit about the Republican response to this. They bring out
[General] Norman Schwartzkopf [leader of Allied Forces in Gulf War] who says
it's a sad day for this country that the military, which is defending our security, is
denied the right to vote. Republicans all over the country are getting involved,
Mark Racicot [Montana governor, 1993-2001], people everywhere. Did you
immediately try to counter that?
H: Me, personally?
P: The Gore team.
H: Again, Lieberman blinked and Nick Baldick went ballistic. We recognized at the
time that this was a PR fiasco of biblical proportions. They were getting to spin
the story whichever way they wanted. Did we try to counter? I think the
campaign made the decision, again they didn't involve me in this, but I think they
made the decision to take their lumps and take the PR lumps. Because we had
opportunities to counter and we didn't. Recognized that the Republicans had
filed a gazillion lawsuits here in Florida, I use that term generically, I think it was
in the teens, challenging various canvassing boards with respect to their
decisions on overseas military ballots, not on overseas ballots generally, but on
military ballots. They filed a federal lawsuit in the northern district over in
Pensacola and in all those occasions, the powers-that-be above decided not to
participate and defend or counter-attack on the military issue.
P: As a matter of fact, in one of those, the Democrats had no lawyer there at all.
H: Almost in every one of them. They [the Republicans] were fixing to lose, it
appeared to be in Judge [Ralph "Bubba"] Smith's [Leon County Circuit Court]
court across the street, and they dismissed that suit.
P: They were going to challenge statewide.
P: And they figured, what if they lost and he threw out all of the ballots? Eventually
what they did is withdraw that suit and then specifically target fourteen counties.
That, theoretically, at least from a strategic point of view, was a better option.
H: Oh, without a doubt, because these local people, they weren't going to lose
anything if they count illegal votes, they weren't going to lose a thing.
P: Plus a county like Escambia which has strong military bases, the canvassing
board are not likely to go against the military.
H: Especially since they had rallies in the street over there on the issue. The Gore
folks had the opportunities and they opted not to take them.
P: Was that a mistake?
H: I think there are those of us that think it was, because I think from a strictly legal
point of view we were on very, very good footing on two issues. The
Republicans were arguing that since the law said that these things didn't have to
have postage, therefore they didn't have postmarks, and that's nuts. Because
you can have a postmark without having postage on a piece of [mail]. On the
issue of requirements that people be registered to vote before they can vote
some of these things, that's another issue that's just absurdly easy to defend.
I'm going to skip ahead a little bit to Thanksgiving stuffing as we call it, when they
stuffed all these military overseas ballots with these illegal ones, some of these
were just so easy to have them thrown out as illegal.
P: Some of them even had been turned out after [November] 7th
H: Without a doubt. They had been voted after the 7th, clearly voted after the 7th
Some of them were clearly domestic as opposed to [overseas].
P: It seems to me that in a strategic point of view, the Gore-Lieberman campaign
had already taken their lumps on this. They had already been hit by it. Why not
go ahead and pursue this legal challenge to what were clearly some illegal votes
that were counted?
H: They just rolled over. I can't tell you why. If you ever get a chance to interview
Joe Sandier, that's the guy. He was the one that delivered me the news that
we're not going to do this.
P: I believe Mitch Berger told me this, that Gore said, if I challenge these military
votes and win the election, I'm not going to be able to govern. So for him it was
an issue of one, trying to govern, and two, trying to "do the right thing," not
necessarily the legal thing.
H: Well, there are those of us who think, [myself] being one of them, that had we
won the election with or without challenging these votes, he wouldn't have been
able to govern. I don't think that the Republican right would have sat down and
pledged loyalty or conceded that Gore was the legitimate president of the United
States as the Democrats did. This is just pure the rankest speculation in the
world, [but] I think there would have been continuing demonstrations in the street
P: Because they would have seen it as Gore had stolen the election.
H: That's correct. As opposed to us seeing it as Bush had stolen the election. But
that's how they would have seen it. They would have never given it any
legitimacy, whereas I think that for the most part, the Democrats have.
P: Jeff Toobin writes in his book that the reason Bush is president is that the
Republicans, while both sides were hypocritical about this, they were willing to do
anything to win. Of course, they were ahead. He says that Gore was too
concerned with public opinion, too concerned with how people viewed his quest
for the presidency.
H: I agree [with] that, but I put it in a little different terms and I try to view it more as
a lawyer. We tried to do it within the processes of law and tried to let the law
deal with it, but I think that the other side, for the most part, did everything they
could to win, whether it be to frustrate the law, blow up the law, misrepresent the
law, spin a memo that just sets forth the rules of the game.
P: Would you argue then, if the recounts had gone according to law, if Palm Beach
and Dade County had finished counting votes and the illegal overseas ballots
had been properly thrown out, that Gore would have won?
H: I don't know that, because I don't know what the result would have been, the
process got subverted and that's problem with the deal. That group that was out
there that first night, that Wednesday night, we understood at the time, at least I
understood as a member of that group, that we could do all this stuff and still
lose. So be it. So be it. Our thing wasn't [that] we [had] to do this in such a way
[that] we [had] to win. We understood that we could go through all this and still
lose, we knew that had done what we could do. I don't know the answer to that
question that you ask because we never got [the] Dade [County votes counted].
I don't know if we finished Broward or Palm Beach, because [Harris] wouldn't
take the numbers from some of those counties.
P: Palm Beach wasn't finished, but Broward did finish.
H: We never got Palm Beach and we never got Dade.
P: Dade County, when The New York Times and others went back and counted,
theoretically how it would have been, it wouldn't have been enough votes to get
Gore over the top.
H: Depending on which scenario you take. There were three scenarios there. But
as time went on, we learned about Duval County and we learned about Jackson
County and we learned about those other things. So when the Florida Supreme
Court eventually [in the] 4-3 [decision] said, let's count the votes, that's why I fell
out of my chair. At that time, we knew that if that was occurring, we probably
would get all the votes that we needed to get over the top.
P: Part of the argument the Republicans make is that, technically, if we look at over-
votes in Duval, and I think there were 9,000, most of those over-votes were by
the basic standard, illegal. If you vote twice, you're [disqualified].
H: Right, you're out.
P: Therefore, when the argument was that these were legal votes that were denied
or not counted the way the Gore petition stated, they would argue that they were,
in fact, illegal votes. Same thing with Palm Beach. If they voted wrong, that's the
way it goes. It's a question of voter error, therefore there is no legal remedy.
H: And I tend to concur with that. That's the discussion that Nick Baldick and I had
with Mike Langton [spokesman, Gore campaign] once we got into the Duval
situation. If in fact these people voted for two folks, I don't think we have a legal
remedy here and, if I remember correctly, I think there was a lawsuit filed in
Duval County by the NAACP [National Association for the Advancement of
Colored People] or someone] like that and basically that lawsuit went to that very
issue and didn't go anywhere. So I don't ascribe to the theory that we could've
gotten a bunch of votes out of Duval.
P: If the Florida Supreme Court had ordered the counting of all the over-votes, they
didn't, they just did under-votes, but had they done over-votes, the way you
mentioned earlier, there would be some occasions where a person would have
circled Bush and maybe written in Bush. It's very clear [to an observer] that the
person wanted to vote for Bush, right? So if you do a human recount, a human
eye can detect what a machine could not detect, votes the machine would throw
out. Is that a legitimate basis for awarding a vote to Bush or Gore?
H: I think it is. I don't know if anybody's told you this, but we were prepared to go to
that argument in front of Judge [Terry] Lewis [Leon County Circuit Court, 1988-
present] the next day, literally the next day.
P: The next day from when?
H: The day they [the U.S. Supreme Court] shut us down.
P: This is the memo, the last appeal that was never filed?
P: I've got a copy of that somewhere.
H: Do you really?
P: Yeah. Mitch Berger had it.
H: Okay, that's good. Well, we were prepared to go to that once the Florida
Supreme Court said, go out and look at the votes. We had people in all the
counties doing that and the reports were coming back that, for example, in Taylor
County down here, in the little bit that they did, a guy says, you have to get to
these over-votes because these people are circling Gore and writing in Gore.
The assignment was given to come up with a memo to do that, come up with an
argument to do that. And so that was done. Once the whole thing got shut down
[by the U.S. Supreme Court], as you know, the Orlando Sentinel did that very
exercise in Lake County. Lake County was a county that in our wildest dreams
we wouldn't have gotten another vote. But under that Gore-Gore thing, Bush-
Bush thing, I think we ended up getting a net 300 [votes].
P: In fact, a lot of the votes came from Bush counties, counties that Bush carried.
H: Right. But in our thinking of where there are pockets of votes for us to try to go
nail, in our wildest dreams we would have never thought about Lake County, but
Lake County [comes] up [with] 300 net [votes].
P: When you filed the contest, and let's just say it would have gone to Judge Lewis,
would they have counted both over- and under-votes?
H: We would have asked them to look at the over-votes, to see if in the over-vote
situation there was a clear indication of the voter's intent.
P: But in the Democratic argument before the Florida Supreme Court, you do not
ask to count the over-votes. Was that a mistake?
H: Again, probably so. But whether it was a mistake at the time, I don't know.
Maybe we didn't know about it then.
P: Also, part of it would have to be the time element, how much time it would take to
count those votes.
H: Right, but you only can deal with what you know at the time, and I guess no one
actually thought there would be these Gore-Gore votes, Bush-Bush votes or
Gore-Lieberman votes, some of them were Gore-Lieberman votes. So was it a
mistake? Yeah. But was it a mistake that we could have anticipated at the time?
I'm not sure that we could have.
P: It might well have been a moot point, because even if they had done that, there
would have been time pressure.
H: We thought when we went back and looked at the 4-3 decision of the Florida
Supreme Court, maybe we're grasping at straws, maybe we're not, but the court
talked about under-votes and they talked about non-votes. We took the non-vote
issue to be over-votes in our final memorandum that we were preparing to take to
Judge Lewis to say, Judge, we want you to do this.
P: Let me go back to the memo that you put out and I want to get you to comment
on Lieberman. My understanding was that privately, Lieberman wanted these
military votes challenged, but when he got with Tim Russert [NBC Washington
Bureau chief, moderator of Meet the Press] on Meet the Press, he essentially
just caved in. I understand you were watching that on television, I wondered
what your reaction was when you saw that?
H: I have absolutely no idea of what he wanted privately. My view of what
happened on Meet the Press was that he got ambushed. Because if, in fact, he
knew about it and was prepared, he could have had a heck of a better answer
than he did. This guy is running for vice-president of the United States, for God's
sake. I just think he was just totally unprepared for it and blinked. That's my
view of the world, but I'm just a guy sitting in Tallahassee watching it on TV.
P: He could have argued that the rule of law either matters or it doesn't. We're not
trying to get rid of military votes, this is the law of the state of Florida, it ought to
H: I don't know if he knew they had a copy of the memo and that he was going to
get hit with it within the first ten seconds of the show.
P: Well, it was really kind of a gotcha [interview] because Tim Russert just slapped
that memo on him.
H: Exactly. Seeing it again, I just don't think that he was prepared to deal with it and
that's why I say he blinked, as opposed to he caved. I just think that he wasn't
prepared to answer the question that was asked.
P: Another argument that could be made that he did not make or that maybe Gore
should have made, that again this issue wasn't just about military ballots, it
included all overseas ballots. I think that was a total misconception in the
public's mind and I think he didn't get that point, maybe.
H: No, he let them define the issue.
P: Yes. He could have also argued that the Republicans were challenging civilian
votes. It seems to me he had an opportunity. How much damage did that
particular event do to the Democrats?
H: To the Democrats, I think it did a significant amount of damage, short-term and
long-term. Only time will tell. We all know that probably most military guys vote
Republican anyway, that's an intuitive sense that we all have, but the way that
they were able to play the issue without really an effective counter, I think has
done a significant amount of damage to the Democrats. But you know there
were guys, [Robert] Kerrey [U.S. Senator from Nebraska, 1989-2001] came out
and defended [the Democrats' position].
P: Bob Kerrey from Nebraska?
H: Bob Kerrey, yes.
P: He was a decorated Vietnam veteran and he came out and said, illegal votes are
H: Exactly. And that's the point.
P: If we go back to Duval, I thought it was very interesting that in Duval, they
counted a large number of military ballots and the argument was that, well, they
didn't comply with all of the rules, but we'll let it go. But then when African
Americans had the same problems, they were just stupid. They're too dumb to
vote, we can't count it, but apparently that same rule didn't apply to the military.
H: Well, it became clear there was a dual standard out there for military votes
versus everybody else's votes. That was what was spun in those days between
the 17th and the 24th of November of 2000. It continued in the debates in the
Florida legislature when they talked about voter error versus the right of a military
guy, no matter where, when, how, even after the election, to vote a ballot. From
my point of view, people lost all focus for why we have rules for people to vote
and people not to vote. I think it goes back to [the fact that] we were trying to
play by the rules of law and we weren't playing by the rules of whatever the rules
P: For example, I know about a specific case where an individual voted long after
the election. That ballot was not counted in Alachua County, because I've talked
to the supervisor of elections. It would have counted in Okaloosa County. If
that's the case, if these ballots are evaluated differently in different counties, isn't
that a violation of the 14th Amendment?
H: It's certainly a violation of Bush v. Gore, as we've learned. It certainly was. And
you know, there was the guy in Duval who voted twice and he was proud of it.
P: He bragged about it.
H: Yeah. In that New York Times story.
P: Which, by the way, I thought that was a very, very good piece. Did you?
H: I did. In fact, I called the reporters that wrote it and thanked them. I knew what I
had done and what I hadn't done and I felt that I had been portrayed as
something that I wasn't and those guys, I thought, set the record straight.
P: Let me go back now and talk a little about what the law actually is....
H: Is or was? Because it's changed since then.
P: I mean during the campaign.
H: As it was.
P: Yes. You have this, I think it's 1984, an administrative agreement with the
H: Consent order.
P: Consent order, that you would allow the state of Florida ten days for votes to
arrive, but the law stated that they had to be cast by the date of the election
November 7. The administrative regulation says postmarked or signed and
dated no later than the date of the federal election. The key thing here is this
word "or." It might not have a postmark, but it is signed and dated. The question
is, does this administrative consent decree take precedence over Florida law?
H: There's another factor there that hasn't been fully argued or dealt with in a legal
sense. In 1989, the legislature significantly amended and changed the rules with
respect to overseas absentee ballots and when they did the 1989 amendment,
they specifically stated that it had to be postmarked only. Now, that became part
of this issue, and at the time they indicated that they were doing this in response
to some of the prior litigation that it involved. There was a legal question at the
time as to whether that administrative rule had been superseded by the
subsequent statutory enactment that was more specific. That was an issue that
has never, ever been litigated and was not litigated, and that was one of the
things that we could have dealt with in terms of litigation, recognizing that in the
big political spin world, who cares? But that is a significant difference. Even you
counted them postmarked only or postmarked and dated, we probably know
most of them aren't dated, so the only way you can determine whether, in fact,
there's no vote fraud occurring is to have some indication by something, that it
was done before the election, and the postmark is probably the most valid
indication, because it's done by somebody neutral. One of the changes they
made in the 2001 election law, which to me is absolutely absurd in and [is] an
invitation to fraud for overseas ballots in the future, is that it says that if you sign
and date it, that will take precedent over any other indication that it was voted
after the election.
P: You could sign and date it November 10 and write down November 7.
H: Exactly. I mean, it's just absurd. But that's what the legislature did, open the
door to overseas fraud.
P: At the time, if we go to the law before this 1989 amendment, it was very clear
that it had to have an APO or FPO or foreign postmark. Anything from the United
States did not count.
H: That's correct. That's unquestionably the law at the time. And overseas doesn't
mean Hawaii, doesn't mean Guam, doesn't mean Puerto Rico. It means a
foreign country. These calls were coming in, these were actual calls that we
were taking. If I got one from Guam, what do I do with it? That's not overseas.
I'm sorry, that's United States of America. But, you know, they would count
P: Also, technically, there's supposed to be a witness, isn't there?
P: Would you invalidate a ballot that arrived on time that was signed, dated, and
postmarked if it didn't have a witness?
H: Yes. Again, that's the requirement. I would suggest such a thing, yes.
P: But didn't the Florida Supreme Court in the Gus Beckstrom v. Volusia County
Canvassing Board [1998 Florida Supreme Court ruling that stated that an
election could be voided even if there was no fraud, if there was substantial
noncompliance with statutory election procedures and if there was reasonable
doubt that the election expressed the will of the voters] case or one of those
cases, rule that you try to give the intent of the voter dominance and if there was
some problem, I think one of the cases was that the envelopes had been messed
up or something, you ruled in favor of the voter.
H: Here was the thing in the case that talked about the hyper-technical
requirements, and that wasn't one of the Beckstrom cases, but I know the case
you're talking about. That case, one of the requirements at the time was that the
witness signature had to go over the flap of the envelope and so the guy signed
on this side of the flap and didn't [sign in the right place], and they said that was
hyper-technical. But the fact that a person is not witnessed that [he] did this, I
think is a little more than hyper-technical, I think it's one of these requirements
that go to the very essence of the validity of the ballot. Again, we've never
litigated that, but if you look at the changes that were enacted in 2001, they
clearly tell you what are the hyper-technical ones versus what are not and I think
they say it's very, very important that the witness sign because it could lead to
the invalidation of your ballot, and that's like magic words, under that same case
that talked about the hyper-technicalities.
P: I also thought it was interesting that Jim Smith [co-chair, Governor's Select Task
Force on Elections, Florida, 2001; Florida Secretary of State, 1987-1995] who
was formally a Republican Florida Secretary of State, who theoretically knew
quite a bit about this, came forward when he was in fear of a large number of
votes from Israel. So he gets up and says, listen, we have to be very precise
about these ballots and if they're invalid, they ought to be thrown out. But as
soon as it became clear how many came from Israel, it was around sixty-seven.
H: Very few.
P: Very few. When it was clear there were not going to be many ballots there and a
lot of military ballots, then they completely changed their perspective. And now
they use this term hyper-technicality on the part of the Gore team.
H: Unfortunately, I think at the time, we were too busy working on other things to
take note of the Jim Smith press conference. It was also interesting that Clay
Roberts, at the time, and I talked to him when I was walking through there,
actually said there was nothing wrong with "my memo." I didn't learn of the Jim
Smith press conference until I saw the New York Times story and also learned
that they had used our hyper-technical interpretation of the law in certain
counties in South Florida, but not in North Florida where they were trying to mine
those military votes.
P: As a matter of fact, on two occasions prior to this election, Roberts had repeated
this law, this is prior to 2000, the individual who had the job who was...
H: Dot Joyce [former director, Florida Division of Elections].
P: Yes. She had the same interpretation of this law. This had been presented in
H: And so had David Rancourt, who was a [former director of the Florida] Division of
Elections, a Republican guy, I think between Dot Joyce and Clay Roberts.
P: What do you think if Bob Butterworth coming out and saying, I think we ought to
count these military votes, although they don't have a postmark, if they're signed
H: Yeah. He's going back to the consent decree and I can't disagree with that, to a
certain degree. It's a legal dispute in interpretation as to the effect of the 1989
law. I said it earlier, I think he blinked by doing that.
P: Why do you think he did that? Was it necessary for him to act?
H: I don't think it was.
P: Nobody had requested his opinion, as I recall.
H: No, he just wanted to talk about it on a given day. I think it might have been
viewed as a way to compromise the perception that Democrats were trying to
crush the military overseas vote and he says, okay, we'll go to this middle ground
here that talks about signed and dated, it's based on a consent decree, and from
a political point of view is probably not going to change the results that much,
because there's not going to be that many that are signed and dated. Shortly
after that, the Gore recount people morphed into saying, yeah, we can live with
the Butterworth standard. I think it was an effort to defuse the issue, not
recognizing that moving forward, that these folks have decided that they're going
to stuff the ballot with every military vote that they can get.
P: In effect, this is almost a green light to the Republicans, isn't it?
H: I think it is, because we're conceding the issue.
P: I thought it was also interesting the Republicans denounced you for your five-
page memo, since they had a fifty-two page detailed playbook with information at
almost every level, which they sent out to all of their operatives.
H: Yeah. Somebody never shared it with us, though.
P: You didn't get a copy of that one?
H: No, their people are apparently much more loyal than ours.
P: Warren Tompkins [Republican strategist], the head of this push on the part of the
Republican Party, indicated that they would pursue these thirteen to fourteen
counties. Actually, in some cases, according to this New York Times article, they
were putting pressure on the canvassing boards and saying, in some cases, that
it would be a violation of federal law if they did not count these votes. Are you
aware of any of that sort of activity?
H: Again, yeah, we saw some of the stuff that went out. We did get a copy of some
of their stuff and we looked at it and concluded that their arguments were a
bunch of legal crap. But this whole thing had taken on more than a legal deal. It
was like, you are [either] for our country or you are against our country and
the principles by which we stand, so it was all, from our point of view, political
rhetoric and we were losing that war.
P: In the end, Bush got, I think, a margin of 739 votes from absentee ballots. I know
it's difficult to tell in retrospect because you don't know whether the votes were
Democratic or Republican. Do you have any sense that the counting of illegal
overseas ballots cost Gore the election?
H: My sense, from a legal point of view, is it did not, because those votes were not
counted in the final tallies of Florida that were sent to Congress, by the Secretary
of State. But at the time, had we been able to count votes and [if] we had those
vote counts from different levels, Dade, Broward, Palm Beach, Volusia, the
Florida Supreme Court's efforts to count all the under-votes, our efforts to try to
bring in the over-votes, and the net Bush overseas absentee votes, [we don't
know] what the result would have been. Maybe it could have cost [him] the
election. Statistically, I think our guys had computed that, with the Thanksgiving
stuffing, they probably had enough to overcome where we thought we were
going to be.
P: I read at one point it was something like 288 votes.
H: Yeah. Our guys that do all the modeling and stuff like that computed that we
would have been down a couple of hundred votes.
P: Also, as part of this, the last two days of this ten-day period, over half of the
military ballots came in and there had been some talk, particularly I know Tom
DeLay [U.S. Representative from Texas, 1985-present] and others in Congress
had gotten in touch with the Pentagon, had gotten names of military personnel
and they could, of course, identify who was Republican and who was a
Democrat, and had in fact encouraged them to get in these votes. Now, if they
do that, and someone votes after the 7th, that's a felony.
H: Yeah, it is. It is. No doubt about it.
P: But did you have any specific knowledge that had gone on?
H: No. At the time we did not. The first time I heard about it was in the New York
Times story. The story that we were operating under was that in Panama City,
for example, in fact there was a lawsuit filed down there by some folks, in
Panama City, a military officer was observed delivering a briefcase full of
absentee ballots to the supervisor's office. The person down there that was very
concerned about that wanted us to file a lawsuit on the issue. Again, we opted
not to do that, but in fact they did file a lawsuit down there, which eventually went
in the toilet as well. That's the only indication that we had heard. We didn't know
about any direct contacts between congressional people, at least I didn't, and
military people out there, encouraging the vote.
P: Let me give you a couple of examples from the New York Times article. In Santa
Rosa County, ballots were accepted that had been postmarked November 8,
some five ballots were postmarked November 17, and Clay County accepted two
ballots that arrived by fax.
H: We knew that was happening at the time, yeah.
P: How could these votes have been counted and why didn't your local Democratic
lawyers challenge this?
H: They were, they did. They were there and they were overrun. They were being
steam-rolled over. I was talking with the guys in Clay County, I was talking with
the lawyer, I think it was Wayne Hogan [Jacksonville trial lawyer], in Duval
County, where a lot of these kinds of things happened, and they would report to
me. All we can do is raise the challenge, protest the counting of that ballot, and
once we lose that protest, the next thing you do is go into court to challenge the
counting of that ballot. The time period you're talking about is around the 24th and
at this point in time, these guys are dealing with this military issue as if it's
nuclear radiation and all we're doing is taking our lumps, as opposed to saying
this is wrong.
P: Let me make one thing clear, I've not been quite sure about it. According to
Florida law, if the number of absentee ballots exceed the margin of victory,
technically, a judge on the Florida Supreme Court can throw them all out.
H: But I don't that was going to [happen]. All we're doing here is looking at these
overseas absentee ballots that are being counted in the ten-day period following
the election. I don't think we're going to get to all absentee ballots, we're just
going to deal with these. That's why you try to make your challenge, but
theoretically what your remedy would be, because you can't identify once they've
opened it and put it into the general population, to have to throw out all those
overseas absentee ballots. We never even got to that point legally and your
preliminary premise on the margin of victory, we haven't put all those other little
things in play to see what the actual number is. This whole thing is a fluid
situation in terms of what the number is.
P: What else do you want to tell me about these overseas military ballots? I've sort
of exhausted the questions I have, but you may have some specific stories or
H: No, I think I've worked them all in, in terms of what we did. There was one little
example, somebody said, there's a diplomatic pouch coming from Denmark, one
of these calls came in, and it's loaded with these ballots. Somebody said they
were voted after the election. I said, well, they might as well just stop them,
because they're not going to get counted. But no, I think everything about
overseas absentee ballots has been said.
P: How would you assess the performance of Katherine Harris as Secretary of
H: In this respect, I thought she was a political animal and was driven by one, and
one desire only, to see George Bush elected President of the United States. She
did not, in my opinion, discharge her duties as the chief elections officer of the
state of Florida.
P: What was you reaction to the fact that a political operative, Mac Stipanovich
[Republican operative; chief of staff for Governor Bob Martinez] was in her office
advising her obviously on some of her decisions?
H: I didn't have a significant adverse reaction to that. A lot of us can claim to be
political operatives of one form or another. People seek advice from different
folks at different times. For example, Bob Crawford [Florida Commissioner of
Agriculture, 1991-2001; Florida state legislator for 14 years] called me and asked
me to give him political advice.
P: He took Jeb Bush's place on the canvassing board?
P: And he was normally a Democrat, right?
H: He was, yeah. He abandoned that belief, or that posture, a long time ago. But I
told him I couldn't do it. People seek advice from different sources and I wasn't
particularly stunned by it.
P: Some people were absolutely certain that the United States Supreme Court was
going to step in, right up until the time they agreed to the writ of certiorari, that
they were going to intervene. What was your assessment of the United States
H: I kind of believed the experts. I was down fighting the battles at the local level, I
wasn't fighting the battles up above. I thought, based on what I had read in other
United States Supreme Court cases about contested elections, specifically
United States Senate races, I think there was a United States Supreme Court
case on that, that they would let the state processes run their full course,
recognizing that the political remedy was really in the Electoral College and the
United States House of Representatives. I was surprised. I didn't think they
P: It was interesting that the 1 1th Circuit Court of Appeals, twice, denied any kind of
injunction and did not get involved, did not see the 14th Amendment, did not see,
at that point, irreparable harm. Of course, by the second 11th Circuit, Bush had
already been certified the winner. So they did not see irreparable [harm]. It was
interesting that that federal court did not see any 14th Amendment issues at all.
H: The only thing I had done is read some United States Supreme Court cases on
Senate recounts and the remedies in the state versus federal, and where the
actual decisions were to be made, and I didn't see them stepping in.
P: Justice [Ruth Bader] Ginsberg [U.S. Supreme Court, 1993-present] said, in her
dissent to the 5-4, there were only three times in Supreme Court history where
the Supreme Court had overturned a state decision and almost all those were
civil rights cases. So it seems highly unusual. You said you were shocked at the
4-3 Florida Supreme Court decision. What shocked you so much about that
H: By that time, Tallahassee was very, very divided. You had the legislature in
session, the [Florida] House pushing as hard as it could to exercise their claimed
authority to appoint the electors. You had the Senate basically saying, we really
don't want to get into this fight.
P: The House did vote, but the Senate never took up that issue.
H: Yeah. I'm not sure at the time of the 4-3 decision, [if] they had voted. This is the
landscape of what's going on. You had the Florida Supreme Court basically just
absolutely, positively condemned by every Republican in the state for the first
decision that they came out on in the Palm Beach County case. So maybe I was
saying okay, the Florida Supreme Court, they've done their thing the first time,
they've talked about the sanctity of the Florida ballot and the Florida electors, and
what they'll do here is look at Judge [Sanders] Saul's [Leon County Circuit Court]
order. They'll say okay, yeah, Judge Sauls did this wrong, and he did this wrong,
and did this wrong, but even considering he did all these things wrong, we don't
think that it's really going to make that big of a difference in the whole scheme of
things. Basically, the [Major] Harding [Florida Supreme Court justice, 1991-
present] opinion was in that.
P: He was one of the three dissenters.
H: Yes. He had one of the dissenting opinions. I thought the Harding opinion would
be the opinion of the Court, that kind of approach. That's why I was surprised and
shocked when they did the other thing.
[End of side A2]
P: The Florida 4-3 decision indicates that they can now count the Palm Beach
County votes, 168 Miami-Dade votes, but he was not entitled to these 51 votes in
Nassau County. You might recall that even after the hand count, they went back
to the machine count. The Court denied the opportunity to count a lot of these
over-votes in Palm Beach County. Did you see that attempt to "count all the
votes," particularly the under-votes, as saving the election for Gore?
H: I think it did a couple of things. When they said, go out and count the under-
votes statewide, we saw it as presenting an opportunity to go statewide and look
at ballots. I also viewed it as an effort to mute the criticism that the Gore people
had only asked for four counties to be recounted, even though I don't think there
was any authority for the Florida Supreme Court to order this statewide deal.
That, to me, was one of these decisions that from a point of view of getting where
you needed to get to count votes was good, but by the same token, I saw it as
changing the rules. That was something that we all became real concerned
about, in terms of changing the rules midstream, because I didn't see where they
had the power to do that, to tell you the truth, and there was no statute that
authorized that, other than the contest statute that basically said [that] a court
can do whatever it wants to do to get the matter settled.
P: This was the appeal of the Sauls' decision, right?
H: That's correct. But that may have been the only authority and if you noticed, in
2001, they came back and stripped that power away from the courts to do that.
That being the case, we thought it presented the best opportunity, to date, to get
where we needed to get, to get the votes counted.
P: Were you surprised at the closeness of the vote? The 4-3 vote?
H: It couldn't get any closer. Of course I was, because I thought it was going to go
the other way, maybe 4-3 or 5-2, but I didn't expect that decision at all. I
expected the contrary decision which would be, like I told you, Judge Sauls had
made a bunch of mistakes, but notwithstanding all the mistakes he had made
below, we're not going to [overturn the decision].
P: Who was the swing vote, R. Fred Lewis [justice, Florida Supreme Court, 1998-
present] or Harry Lee Anstead [justice, Florida Supreme Court, 1994-present]?
H: I think it was Anstead, but you never know.
P: Peggy Quince [justice, Florida Supreme Court, 1998-present] and Barbara
Pariente [justice, Florida Supreme Court, 1997-present], you probably knew
where they were going to fall, right?
H: You try to guess, but you never know. I've argued cases before the Florida
Supreme Court [and] that collegial judicial decision-making process is basically a
mystery. You sit there and you think this is going to happen, you think it's not
going to happen. From Dexter [Douglass's] point of view, maybe all seven of
them you thought might have been there, because at the time, the Republicans
are saying, this is Dexter's court, because Lawton Chiles or Democrats
appointed them all, but I don't think you can go by that, necessarily.
P: Well, it seems to me that 4-3 decision takes a lot of steam out of that argument.
P: If it had been a Democratic court, they would have probably voted 7-0.
H: Yeah. You look at the business group, it's a liberal Democratic trial lawyer court
and you don't get to that either, that 4-3 decision.
P: I want to follow up on this argument that the court is changing the law because
that's obviously part of what Barry Richard is going to be arguing. He argues that
they, in fact, have violated Section 2 of the Constitution by changing the law and
the court's doing it, not the legislature. When they changed the initial date, when
they refused to accept the certification by the Secretary of State and gave her
until November 26 to get all of those votes in, the change of that date also
appears to be a change of the law.
H: I tend to disagree. In state law with respect to contests, there is long-established
precedent in the state of Florida, I think I gave it to David Boies at the time, I
found some case back in the early 1920s or something like that, that basically
says when you're doing a contest and it's a statewide race contest issue, you can
always address those issues that arise in the contest, after the dates of the
certified numbers. Really, the only thing that's different about this case than that
case is the push at the federal level for some kind of certainty prior to certain
dates, December 12, or later on, prior to Inauguration Day, but that's even up to
debate and discussion as well. I don't think that the changing of the dates is
necessarily a change in the law.
P: One of the problems might be on the U.S. Supreme Court remand, part of what
they were expecting at that point, at least according to Sandra Day O'Connor
[U.S. Supreme Court justice, 1981-present], they wanted an explanation of why
the Florida Supreme Court picked that date, and they did not give an explanation
of the 4-3 vote, they did later. Do you think that may have been a problem?
H: From a court-to-court politics point of view, I think the United States Supreme
Court may have felt they didn't get the satisfaction they needed to get from the
Florida Supreme Court. They may have perceived up there [that] this court's
running amok and we need to shut it down.
P: Do you know why they changed the date to November 26?
P: One explanation was that Katherine Harris, by not being flexible, had denied the
opportunity to count these votes and she had "taken up five days" so they just
extended it. That was their thinking which they never, I think, adequately
H: I don't know why they did that. I think one of the tactical errors that we may have
made in this process was conceding that December 12 was some kind of date
worth something. You either had to have the thing resolved or not. One school
of thought was December 12 isn't a magic date and I think they may have been
working back from that for certain things too.
P: Let's talk about the safe harbor. That's 3 U.S. Code 5, and there's nothing, at
least that I know of in Florida law, that sets that as a specific date. As I
understand it, it's not required. I would assume that a Republican legislature
would want to take advantage of the safe harbor, but it's not required. We notice
that in several arguments, particularly the dissenters in the Supreme Court,
argue that any date, prior to the actual inauguration of the President of the United
States, is a date that can be flexible. December 12 is not a specific date by
which everything has to be concluded, although that what the United States
Supreme Court concluded. What's your take on that?
H: Frankly, I'm more an observer on that, and I hate to punt on that, [but] it's just
that I didn't focus on those issues and wasn't in that thing. I eventually came
around to subscribing to the belief that December 12 wasn't a magic date, set in
stone and I think that we made a tactical error in our argument to the Florida
Supreme Court in conceding that it was.
P: As a matter of fact, Boies in the first appearance, agreed that it was, and then at
a later period changed and said, no, no, I mean December 18.
H: Yeah. I think that was a tactical error that we made at that time.
P: They hand down this decision on December 12, right before midnight, so if they
assume, as they did, that December 12 was a cutoff date, obviously there
weren't enough hours to do a recount.
H: Oh, without a doubt. In fact, that's what we looked at. We looked at all these
things that they said we had to do, and you couldn't get there from here. And I
think that was part of the thinking that went into Vice-President Gore saying,
P: Dexter Douglass said that Gore had called him and asked if they still had
grounds and Douglass said, well, yeah, technically, legally, constitutionally we
have grounds, but the game's up. The United States Supreme Court has ruled
and it's over and you can't win. And even if you could go through all of this
theoretically, you couldn't win anyway.
H: One of those things was we had to go to the Secretary of State's office and get
approval for all these little things that were happening and under court of law you
couldn't get there from here in that time frame. And so it was kind of over.
P: Let me ask you about the Florida legislature, they voted 68-31 in the House to
"seat electors chosen by the legislature" despite whatever the final outcome was
in the actual recount of the votes. Is that constitutional? Does it set a dangerous
H: Whether it's constitutional or not, they thought they were acting in compliance
with that. Again, I don't remember the court case that they had cited, because I
had read it a couple of times before we got there, so I reserve judgment on
whether it was constitutional. But truly does it set dangerous precedent?
Without a doubt, without a doubt. Let's say its 61-59, and there was a Florida
House of Representatives in the recent history that was 61-59. Just throwing out
all the votes of the people, disregarding all the provisions of state law with
respect to counts, recounts, and all that kind of stuff, because they have a
political agenda to put a person who is the brother of the governor in the White
House. Yeah, it's dangerous as hell and it's a true threat, I think, to democracy,
because it puts the politics over a process of law and I thought we were
supposed to be a country of laws.
P: So certainly, by any standard, it was a partisan political move.
H: Without a doubt, no doubt about it.
P: Partly we know that through Tom Feeney [Florida state representative, 1990-
1994, 1996-present; speaker of Florida House of Representatives, 2001-present]
as the Speaker of the House, because he came out and said, when the 4-3
decision came down, that it was a disgrace.
H: Between Baker and Feeney, it took me back in American history to when the
United States Supreme Court made some decision about the Indians and I think
President [Andrew] Jackson [U.S. President, 1829-1837], who was president at
the time, said, it's John Marshall's [chief justice, U.S. Supreme Court, 1801-1835]
decision, let him enforce it. The sense that I got is that Florida's elected political
folks basically said that the Florida Supreme Court didn't count in all this and that
the rule of law doesn't count and that's a scary thought.
P: Justice Charlie Wells [chief justice, Florida Supreme Court, 1994-present] wrote
a very stinging dissent to this 4-3 decision. A couple of people have indicated to
me that while he probably disagreed with the decision, part of what he was doing
was a political statement because he feared, and I think that we now know
correctly so, that the legislature intended to reduce the power of the Florida
Supreme Court. Do you think that may have factored into his dissent?
H: I don't know, I really don't know. You say reduce the power of the Florida
Supreme Court, they are not, in my view, a very powerful Supreme Court. Sure,
if you can get a case to them through their jurisdictional process, they can render
a decision, but there was a constitutional amendment that went through, I think in
the 1980s, that significantly reduced their power, from the point of view of
litigants, to right wrongs and deal with issues that might need to be dealt with,
when they reduced their power to deal in certiorari and conflict cert. I think the
Republican legislature has been on a mission against the Florida Supreme Court
on matters unrelated to this, whether it be court reform or the business
community's agenda or the governor's agenda in some of his political things, and
this may have just conveniently fit within their bigger objectives to gut a branch of
government that is frustrating some political aims that they have.
P: Let me get you to comment on the 5-4 U.S. Supreme Court decision. Do you
see that as a 7-2 decision or a 5-4 decision?
H: I see it as 5-4. Even though some of the other guys on the four-side said that
they kind of agreed with some of the things that the people on the five-side said,
but I see it as 5-4.
P: Are you surprised that the William Rehnquist [U.S. Supreme Court Justice, 1972-
present, Chief Justice of the U.S. Supreme Court, 1986-present] Court would
hand down a decision in this particular case, based on the 14th Amendment?
H: Yes. Even though I wasn't intricately involved in all that, I tried to follow the
arguments and tried to follow the analysis. It didn't seem like the kind of decision
that the judicial conservatives would have made.
P: But it makes them an activist court, I guess.
H: Or just a court that decided an election. They had been active in certain areas.
Notwithstanding the fact that we don't think they're an activist court, the United
States Supreme Court has been very active in state rights, but it's [been] active,
in a sense, to slam some congressional remedies that they've given to people
vis-a-vis the states. They're not generally viewed as an activist court, but they
have been active in certain little doctrines.
P: One critic of the Supreme Court said, if you used the 14th Amendment as
unequal counting, different standards, that if you carry that to the logical
conclusion, there would be one standard for the United States.
H: That's correct. I think I alluded to that earlier. There would be. There would be
one standard for the United States and we know, as a fact, that that is not what
occurs. Georgia, New York, Iowa, Montana do not have the same ways of
dealing with counting votes, same ways of viewing what's an over-vote, all that
kind of stuff as we do.
P: You'd end up with the same machines, you'd have to have everything the same,
would you not?
H: Theoretically, if you take it to its logical conclusion, yeah.
P: Do you see this decision, as some critics have said, as a partisan political
H: I do. I feel it is. That's why I view it as a 5-4 decision and I don't think it really
reflected the law, with respect to election contests that existed prior to it.
P: Do you think they did it because they wanted to get Bush elected or because
they perceived a "constitutional crisis" that needed to be resolved?
H: I would tend to give them the benefit of the doubt on the second one, because I
think they perceived a constitutional crisis. Like I told you earlier, I think that had
the process gone on, we would have suffered some instability that we didn't have
because of the decision.
P: But once again, if you look at that, it seems to me that it's very clear that the
court knows there are alternatives here. We know the process if the Electoral
College does not determine a winner. It goes to the United States Congress.
There is a constitutional basis to resolve the issue. So some people arguing that
it was a crisis would be overstating the case.
H: Yeah, but I'm just kind of giving them the benefit of the doubt, because I've never
worked up there. I don't think they consciously sat down and said, we need to
elect George Bush. I alluded to the fact or mentioned the fact that they may have
been miffed at the Florida Supreme Court on the failure to respond to their
invitation for clarification in a way that they thought was appropriate. There may
have been some inter-court politics, they may have perceived this whole thing as
spinning out of control. I don't know, but I want to give them the benefit of the
P: One issue that somebody brought up was that they watch television too and they
could see all this chaotic activity at Miami Dade and Palm Beach and in some
sense, maybe that permeated their thinking.
H: I'm just guessing. I have no idea. It's 5-4, they spoke, and we move on.
P: What about Stephen Breyer's [justice, U.S. Supreme Court, 1994-present]
dissent? Breyer said that the case should be remanded to the Florida Supreme
Court and they would resume the recount because he is saying that there is time
to do this. What was your reaction to that? Obviously, that didn't have much
standing in the court.
H: To answer your question as honestly as I can, once it was 5-4 and we shut down,
everything shut down in my mind. It didn't make any difference. There was no
appeal, no way around it, we're done. Never thought about Breyer's dissent in
any way whatsoever. I was just counting the five.
P: Let me go to this final brief you had drawn up. Had that been drawn up prior to
the Supreme Court decision?
P: This was done afterwards?
H: The 4-3 opinion.
P: This was done after the Florida Supreme Court and before the U.S. Supreme
P: Okay. Did you in any way discuss whether or not that should be filed?
H: It was my understanding that we were going to file it the next day. When I say
the next day, it was probably around Saturday. I think I finished it Friday night,
Saturday morning. The 4-3 decision comes out on Friday afternoon, if I
remember correctly, so we start. Was it Friday afternoon around 4:00?
P: I think that's right.
H: Because we're counting votes for twenty-two hours and forty-five minutes, but
P: Friday, December 8.
H: Right. It comes around 4:00 Friday, so between Friday afternoon and Saturday
morning we have to get in place everybody out there in the field to go to these
P: To start the recounts.
H: Yes, to start the canvass of the under-votes. Each county did it a little differently
too. Some counties looked at all the votes, some counties looked at the under-
votes. That was happening as well, in the various counties. Some counties were
looking at each and every ballot and that's how we discovered that we were
getting these Gore-Gore deals. During the early process of that, we're getting
reports, we're getting the Gore-Gore deals. It's at that point in time that we're
asked to do the memo. The memo is in development Saturday night, Sunday.
And then at 2:45 on Saturday, the United States Supreme Court shuts us down.
That's the time when that final memo was being developed, once we were
getting the information back that these votes are out there.
P: Since the case was on a remand back to the Florida Supreme Court, technically
they could have made a response, could they not?
P: But they were like everybody else, they just said the game's up, right?
H: Yeah. I think when the Vice-President came on TV and said, it's over, everybody
just kind of stood down for awhile and sorted it out.
P: What was the main basis of this last appeal that was not filed?
H: Basically that the Florida Supreme Court, in its decision, had talked about under-
votes and non-votes and we viewed the non-votes as being over-votes and we
were going to ask Judge Lewis to order that those be canvassed as well.
P: Of course, it wouldn't have mattered in the long run, but technically the 4-3
decision could have ordered over-votes as well, right?
H: That was our argument, yes. And did. That was our argument as well.
P: How has this election impacted the state of Florida?
H: In a broad sense, Florida's elections process and political processes were put
under the microscope for the nation and the world and we didn't look very good
in certain quarters. That's the biggest, broadest picture brush I can give it and a
lot of states and a lot of other individuals have basically said, in response to that,
but for the grace of God, go us.
P: For example, South Carolina had more over-votes and under-votes than Florida
H: Exactly, and they recognized that. But for the grace [of God], it could have
P: Do you think the media, particularly television media but also print media, were
fair in their coverage of these events?
H: In a general sense, yes, but I can cite you a number of specifics where they
P: One of the things that has been complained about is Jim Baker saying the votes
had been counted and recounted.
H: Yeah, but that was not a true statement.
P: That was not a true statement and a lot of people have argued that the media let
him get away with it.
H: The media are strange. You have the spin that gets put on my memo that's not
reality, but no one ever questions the fact that [Baker] said the votes had been
counted and recounted and recounted again, even when he was referring to just
that. Those were not true statements. But for whatever reason, it goes to this
new concept in news. Another phrase that I learned throughout this whole
process, you have to feed the beast. The beast is the twenty-four hour cable
channels and the beast is the media. The beast always has to have something
on and they never take a time to sit back and say, what are we putting on? Is it
true, is it not true, are people using us for various purposes? So the beast had to
be fed and the guys at the highest levels on both political parties know that, and
they parade people out there to say this message, whether it's true or not, it
doesn't make any difference. The media just broadcasts it.
P: Another example was, and I know Bob Kerrey talked about this, the Republicans
were talking about people eating chads, it was chaos in Palm Beach and there
were all these observers. There was no chaos and they would be inside, then
they'd come out and say, it's horrible. No one ever challenged that statement,
P: In that context, it looks like to me the Republicans won the public relations war.
H: Oh, they did. No doubt about it.
P: Did that ultimately affect the outcome of the election?
H: I don't think it affected the outcome of the election, I think it created a lot of doubt
in those people that are in the middle. In politics, you probably hear people say,
in any given election there's going to be 40 percent of the people that are going
to do this and there's 40 percent of people going [to do that] and then there's 20
percent in the middle. It's this 20 percent in the middle that are going to get a
perception of the military vote, a perception of the chad. They're going to get a
perception of what's going on, and they're going to go one way or the other
depending on that. That group I think may have been affected, or not affected,
by this, I can't tell you. But did it cause us to lose the election? No, because
everything was already done prior to that time.
P: I talked with some of the Miami lawyers and their sense of it was that this was a
deliberate attempt to stop the recount. David Leahy, who was the supervisor of
elections in Dade County, said, we cannot complete the count in time. But we
found out later that when the recount began and Judge Lewis and the other
judges counted all those votes in one day, that there were about 10,500. It
seemed he had five days to complete the count. Nobody was challenging the
judges, but is that a problem in terms of intimidation of a public official to prevent
that official from carrying out his legal duties?
H: Dade County, strangely enough, was always behind the curve of everybody else.
It's like they never wanted to do it in the first place. Volusia got right on it, Palm
Beach got right on it, Broward was a couple of days late, but Dade put it off for
like a week at the front end, even thinking about doing it. There was always a
reluctance in Dade to do whatever they needed to do and obviously the people
down in Dade, though, did receive intimidation in a public sense that other people
didn't. There were all sorts of hate and threats that went back and forth between
various people. The public officials probably could tell you all the stuff that
happened to them.
P: Theresa LePore [supervisor of elections, Palm Beach County] said she got, just
estimating, probably 250,000 e-mails and letters and telephone calls threatening
her with death and all this.
H: I received the same. I can't tell you the numbers, but even though I had left
Akerman as an entity, my office was still there, pending me getting out of there.
The number of e-mails that I got with respect to the overseas absentee ballots
crashed our computer system, it caused them to have to put a guard in the office
over there, and I'm just a guy. The public officials were probably getting ten
times more than me.
P: Isn't that a little disconcerting to public officials basically trying to do their job?
Clearly, Theresa LePore's decision to do the butterfly ballot was with good
intentions. I don't think she wanted Gore to lose the election, and yet she was
the brunt of the anger and the frustration, in many cases from Democrats in this
circumstance, but later from the Republicans as well.
H: I think it comes from the fact that the people who are running the deal, the people
who are spinning these stories underneath, that's where people are getting all
this stuff. At least from my point of view on the Republican side, and recognizing
that I'm biased here a little bit, they were not making responsible statements and
they were basically telling their people that the election was being stolen, all
these legal procedures weren't legitimate, and they were counting on people
getting whipped up into a frenzy. The Dade County event down there where they
had the civil unrest in the courthouse, I was sitting watching TV with the folks in
the recount and they would say, oh, that's the congressional aide to so-and-so.
Basically Republican congressional aides [were] leading this chaos in the Dade
P: Actually, as you know, they had been not only paid but given airfare, given hotels
and given instructions.
H: I'm just telling you what I knew at the time. I'm sitting there and they're saying
well, that's so-and-so's aide and I'm going this is nuts. It is disconcerting that
people are incited to do things like that when people are trying to do their jobs.
P: If you had to do it all over again, would you have agreed to go to work for Al
P: How has this experience impacted you and your career?
H: I think I'm probably one of the ones that's been written about more in terms of
how it's impacted my career than other folks. I had to leave a law firm that I had
been associated with for a number of years, and I don't regret that, because I
had previously left that law firm and I had survived, so I knew I would survive
again. I think the most significant thing that it's done [is] in terms of changing my
life. Changing your employer isn't that much. I still do the same kind of law that I
did before. I still represent Democrats and Republicans. I can tell you that I
have a very deep distrust in the media, especially these shows where the media
tries to spin news or generate controversy or discuss issues between people that
may have absurd positions, [and] neither talk about what's really in the legislation
or what really the thing is. It's like us-versus-them all the time. I won't watch
those kinds of shows anymore, I just don't do it.
P: Things like Firing Line?
H: That kind of stuff, yeah. It's just who can yell at each other the most, as opposed
to focus[ing] on the policy issues, the cost, the benefits of things. I worked in the
political process for a lot of years and that's all we were concerned about, that
kind of stuff. I've become more radical in my politics. I will do everything I can to
change from a Republican administration in state government to a Democratic
administration in state government. Same thing at the national level. That's
another change in my life. As I told one of these guys, the ten-o'clock hour at
night is an hour that comes every night. I still walk my dogs at 10:00 every night
and because of this election, two things significant happened [at] 10:00 at night
and every night I think about it. One, when Florida fell out of the Gore column, it
was 10:00 on November 7. And at 10:00 on December 12, that's when the
United States Supreme Court made their decision. Every night when I walk my
dogs, I think about that, so it doesn't get behind me. Maybe I ought to walk my
dogs at 11:00 or 9:00, but I enjoy walking my dogs and they're used to doing it at
10:00. So those are the kind of changes, that's how my life has changed. I think
I've become more determined in my politics and I just have this dislike for the
Republican brand of politics.
P: How did it affect your health these thirty-six days?
H: Not at all. I'm fine. None. Did I sleep less? Yes. Did we work a lot? Yes. But I
had done a couple of projects in my prior life's times that were kind of like that as
well. I'd done reapportionment in the Florida House of Representatives in the
1980s and we worked six months like that as opposed to just thirty-six days, so it
was more kind of like that. My health didn't suffer.
P: What do you think about the Florida Election Reform Act of 2001? One of the
things they did not do is set up a standard machine for each county, but they did
provide funds for upgrades. Another thing that comes out of this is the
provisional ballot. Do you think that's a good idea?
H: You asked several questions there. With respect to the provisional ballot, they've
created it in such a way that it still is not going to be fair to the voter who thinks
they're doing the right thing. In order for your provisional ballot to count, you
have to show up in the exact precinct that you're supposed to be registered in. If
in fact you're a motor-voter and you've registered that way, and somehow you
show up at the wrong precinct, your vote is not going to be counted, that's not
going to happen. In fact, on the provisional ballot issue, I've had some people
that are in-the-know [say] they designed it that way so that the person just can't
show up at any polling place on election day and vote and have their vote
counted against Jeb Bush. That was the way it was explained to me. Yeah, they
made some steps, they're getting along the way, but it isn't quite there. With
respect to some of the changes in the 2001, I think they went totally overboard
on overseas absentee ballots with respect to counting anything that's voted, just
by counting on the signature issue.
P: I understand that now they can be sent in electronically?
H: There's an authorization for that to happen, they can be sent in electronically or
faxed. There [has to be] authorization there. And then there's this additional
provision that allows supervisors of elections to waive the registration deadline if
you're coming from overseas. They can register you after the cutoffs.
P: Isn't that an invitation to fraud?
H: There's a whole bunch of invitations to fraud in that area. Yes, there is.
P: There always has been anyway with absentee ballots.
H: It's a selective invitation to fraud. There's another provision in there that's very,
very interesting and it's going to be interesting. It appears to allow the Division of
Elections to waive the ten-day rule as well, if in fact for some reason, some
national emergency is prohibiting somebody from voting overseas.
P: Like September 11 [date of terrorist attacks] or something?
H: Yeah, or the guys are in...
P: In Afghanistan.
H: Whatever. Or Iraq or wherever they're going to be on Election Day. That's
another invitation. Are we ever going to have any certainty with respect to
elections? Back to the machines. In their haste to do away with the punch card
ballot, the legislature, in its infinite wisdom, did away with probably the most
reliable source of balloting, which is paper ballots. Go figure, but they did that.
P: That actually is the most accurate.
H: Yeah, sure. Without a doubt. They did away with that.
P: By the way, they've already had trouble with some of these new machines.
H: I was going to get to that. The other thing is, with respect to the Optiscan voting,
they didn't, in the legislation, set forth the specific standards for counting or not
counting votes. But there have been administrative rules that have been
proposed by the Secretary of State's office that, for the most part, will permit the
count of votes in an Optiscan system, the votes that we were trying to argue to
have counted, whether they be the over-votes or the under-votes.
P: Although that's not been adopted.
H: No, and that's curious too that it hasn't been adopted. The Optiscan system, with
the capability of rejecting over-votes at the precinct level, is probably the second
most accurate system that's available, at least in terms of what we know [at] this
point in time. Unfortunately, some of the big counties have gone to the
touchscreen system, which from my point of view at least, is a system that's
potentially fraught with problems, because you're relying on a machine to take
your touch and electronically turn it into something that you actually never see.
They had the little issue down in Palm Beach County with the Wellington election,
where they had one race on the ballot and a significant portion of the people not
voting, who showed up [for] that one race. That kind of raises some questions. I
don't know if there are any answers to that other than what we're being asked to
do, from a point of view of the voter, is to have some faith in something that we
actually never see, or never actually do, whether it be put an X on a piece of
paper or put in an oval. We're asked to take that on faith and I guess time will
only tell what's going to happen here, but it's a concern [that] at least I have.
P: I thought it was very strange that they said that obviously the key in Florida law is
intent of the voter. So now you're going to change from clear intent of the voter
to the voter made a definite choice. It seems semantic to me.
H : It is, it is.
P: Why is that any more of a definite standard than the previous standard?
H: I think that, from the point of view of the forces on the other side, they felt that the
fact that the chad was dangling or there was a prick or a point on the chad,
wasn't a clear indication of a choice. So they think that's a magic word for what
their position was back in 2000.
P: They're trying to eliminate what we call these indentations, correct?
H: Yes. But chads aren't going to be around, so it's kind of a moot point. In light of
the changes, taking away the chads, and the new systems that are involved, at
least with the Optiscans, I think we can get there. With the touchscreens, I don't
know how the hell we're going to deal with that. In that Palm Beach example, the
cases that are percolating down there may help us get there, but I have no idea
how we're going to be able deal with it.
P: They're by far way more expensive than Optiscans.
H: Leon County had a very good system.
P: Leon and Alachua, both.
H: I don't vote down there, so I don't know what kind of system you all have. Do
you have the Optiscan with the precinct base?
P: Almost exactly the same as Leon, but you could argue they have a higher-
educated population, so they are less likely to foul something up.
H: I use Leon as an example because I took my mother-in-law to vote on November
7, 2000, and for whatever reason, she over-voted in a particular race and it spit
[the ballot] out and she was able to correct that and deal with it. The Optiscan,
theoretically, won't let you over-vote either, but you have to have faith that this
electronic stuff is happening.
P: You mean the touchscreen.
H: Yeah, the touchscreen. You have to have that the electronics thing would
P: Another aspect of this which I thought was unusual was that the act did away
with the second primary.
H: Yeah. You want to talk about that?
P: Yeah. You could argue the purpose of that was so Janet Reno [U.S. Attorney
General, 1993-2001] would be the Democratic nominee and Jeb Bush could get
H: Without a doubt, that was their thinking. It's just truly bizarre. That came out of
the conference process. The second primary is a controversial issue in and of
itself. Florida is in the minority of states that have a second primary. The
argument [is] that the reason we have a second primary is racially-based so that
blacks don't get nominated to office. By the same token, it's worked very well for
the Democrats over time, to select a candidate that can be a winning candidate
at the polls, Reubin Askew [Florida governor 1971-1979], Bob Graham, you just
kind of go down a whole bunch of these folks and you get there. But the second
primary is [an] additional cost to elections, it's this, it's that. The fact that they
eliminated the second primary for one damn election is way too much evidence
that it's politically motivated to manipulate the process so the political result [is
the one] that these guys that are in power today want to get. They did it there,
they did it last week on the citizen's initiative deal on putting price tags on
citizen's initiatives and it's going to apply to ones that are in the process. It's a
manipulation, changing the rules to get the political result.
P: Of course, the Republicans argue that's what the Democrats did when they were
H: And that's bullshit, I'm sorry. That is not true, because I was there. We didn't do
that. You talk about a story that doesn't get rebutted. They talked in the last
reapportionment cycle about how the Democrats have used the process forever
to do this or do that. Well, I'm sorry, but they're just not right, because in 1982, in
reapportionment, the legislature passed it unanimously. The Democrats didn't do
anything to anybody. Republicans and Democrats passed it unanimously. They
tell the story and don't get rebutted.
[End of side B3]
P: Comment briefly on what happened in Seminole County and Martin County
where Republicans were allowed in one case to add identification numbers and
in another case to actually take those absentee ballot request forms, but not the
ballots themselves, outside of the office.
H: The Seminole County case and the Martin County case on absentee ballot
applications were presented to the Gore recount legal team as issues to be
included in some challenge or protest or contest that we made to the election. In
both cases, we kind of looked at the law and determined that they probably
weren't going to be successful. We thought they weren't going to be successful
for a number of reasons, but they also created political problems as well because
there were other supervisors of elections offices that sent out absentee ballots,
even though people didn't have those numbers and that information on their
requests. We thought we would get into the hyper-technical issue here because
again, was it the voter who actually voted the ballot, the signatures would verify
that, and were all the other requirements [like] the witness requirements [and]
stuff like that acceded to? It was an effort by at least the plaintiffs in those cases,
potentially, to knock out 15,000 absentee ballots in Seminole County.
P: Now this was a case brought by Harry Jacobs [Harry Jacobs v. Seminole County
Canvassing Board, case filed during 2000 election in Florida requesting that all
absentee ballots be thrown out in Seminole County] who is a local lawyer. Was
that at the behest of the Gore campaign?
H: No, Harry wanted to do it. Harry's the one that came to us with this issue. We
just said we weren't going to do it.
P: So he did it on his own?
H: Yeah. We didn't go out and find him. He came to us and said, we want you to
do this. I said, we're not going to do it, we're just not going to do this, but if you
want to do it, that's fine. And [we told] the guy from Martin County, if you guys
want to do it, that's fine, but we're not going to do it. We're not going to include
that in our contest and we're not going to initiate separate litigation on that.
P: So you were certainly not surprised with Judge Nikki Clark [judge, Leon County
Circuit Court] and Judge Lewis decisions on those cases.
H: No, I was not.
P: Do you think they were correct?
H: Yeah. I think they were correct on the law, but it showed that there was political
favoritism, at least in one office. I'm not that familiar with the Martin County case,
but at least in Seminole County, there was political favoritism that gave
Republicans access in the office that Democrats didn't have.
P: I've talked to Sandra Goard [supervisor of elections, Seminole County] and
Peggy Robbins [supervisor of elections, Martin County] and both of them argue
that they didn't do anything that they would not have also done for the
Democrats, had they asked.
H: Exactly. Sometimes you don't know to ask the question.
P: Peggy Robbins said she didn't tell anybody specifically. I've talked to David
Cardwell [attorney, CNN elections analyst] and he said he didn't think it was a
violation necessarily of election law, but was a violation of public records law,
particularly the removal of those documents from the office. Once they're part of
that office, they're state documents.
H: That's a good point.
P: The other element that comes up is, do you know what took place when those
documents were outside the office?
H: It comes back to the point, the issue from my point of view and I think the court
said, did the elector vote, did the elector's absentee ballot comply with the other
requirements of the law and obviously, or in most cases, they probably did,
because they got counted.
P: Plus, you can't determine which of the ones would be tainted, so you can't throw
them all out.
H: Or from Harry Jacobs' point of view, you can't determine which ones aren't
tainted, so you have to throw them all out. If you're looking at a 500-vote
[margin] as your measure of difference and you have a potential absentee pool of
15,000, they all go away.
P: There's absolutely no question that if you look at it pragmatically, Peggy Robbins,
through her actions, got more than enough votes to carry the election for George
H: Oh, yeah.
P: In fact, she's something of a heroine.
H: But by the same token, we knew that there was a Democratic supervisor of
elections in another county that didn't require that required information and would
still send the absentee ballots out, so it was kind of like where do you end up with
this? Where do you end up going?
P: Plus you wouldn't have time for any kind of remedy anyway, would you?
H: I don't think so. Because Judge [Jorge] LaBarga [Palm Beach County Circuit
Court] ruled you can't have a re-vote and that was a correct ruling too, probably
in this instance, that you couldn't have a re-vote because of the federal
P: Is there anything else that you would like to discuss or comment on that we
H: Not that I can think of.
P: Well, I want to thank you very much for your time.
H: Thank you.
[End of the interview.]