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Title: Interview with Kerey Carpenter
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Title: Interview with Kerey Carpenter
Physical Description: Book
Language: English
Publication Date: June 11, 2002
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Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
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Bibliographic ID: UF00067384
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 26

Table of Contents
    Copyright
        Copyright
    Abstract
        Abstract
    Interview
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This Oral History is copyrighted by the Interviewee
and the Samuel Proctor Oral History Program on
behalf of the Board of Trustees of the University of
Florida.

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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida









FEP 26
Kerey Carpenter

Kerey Carpenter begins by detailing her legal education and qualifications, adding that she is a
registered Republican, before discussing her Election Day 2000 experience and hiring as an
assistant counsel by Florida General Counsel Debbie Kearney (1-2). Initially sent to West Palm
Beach, she served as a liaison to Steele, Hector, & Davis, the law firm hired by Keamey for the
state of Florida (2). She touches on the assembly of the Florida legal team and the hierarchy of
decision-making (3). Carpenter assesses the performance of Secretary of State Katherine Harris,
mentioning her self-imposed isolation from the Bush governorship (4). She details her history
with Theresa LePore, Palm Beach County Supervisor of Elections, and her threefold mission -
she also denies assertions that she was sent by Governor Jeb Bush to halt the recount (5). She
describes her initial meeting with LePore and staff, and recalls the daily media frenzy; her first
contacts with the media came as she detailed the State Department's official position on manual
recounts (6-8). She discusses conflicts within the Board, denying conjecture that she
deliberately mislead Judge Burton over statutes but adding that she did meet privately with board
members to discuss them (8-10). Carpenter puts forth her interpretation of "voter tabulation"
error and the position of the State Department on recounts and secretarial discretion (11-13).
She remarks on the grueling legal pace and the challenge of keeping informed (14).

She returned to Tallahassee on November 17th when most of her cases were transferred to Leon
County (15). Acting as a legal advisor, Carpenter researched the State Department's obligation
to certify the election, a process she believes Katherine Harris followed effectively, and
discusses the time line for recount, certification, and contest (16-17). She mentions her
disappointment with the Florida Supreme Court decision (17). She also evaluates the
performance of the Palm Beach County Canvassing Board, touching on Judge Burton's dismay
at the loose standard for counting voter intent, Theresa LePore caving in to pressure to demand a
recount, and Carol Roberts' partisanship (18-22). She talks about appealing directly to the
Florida Supreme Court to consolidate the disparate county cases, a side effect of which was
halting the recount, and the political effect of that on Katherine Harris (22-23). She comments
on Mac Stipanovich, Ben Kuehne, and Mark Wallace (23-25). Carpenter reacts to statements
alleging partisanship from several books published on the 2000 election (25-29). She comments
on legal circumstances surrounding absentee military ballots, segueing into a discussion on the
Democratic Party's request for specific local recounts (29-31). She talks about legal justification
used in the 11th Circuit Court's decision, and analyzes the outcomes of the Seminole and Martin
County cases (32-33). She displays shock at the November 21 Florida Supreme Court decision
to extend recount, exploring the November 26 deadline, and comments on their second decision
(33-37). She discusses the December 12 recount deadline controversy (37-38). Carpenter
expresses her admiration for the U.S. Supreme Court and her delight at watching the appeal (38).
She identifies the chief arguments used in the case and speculates on the legal ramifications of
the decision (39-41). Carpenter then discusses ballot machine technology (42). She also speaks
about the media characterizations of herself and Katherine Harris (43). She explores the case's
impact on her personally, expresses her delight at being involved, and concludes by sharing a
few amusing anecdotes (44-46).









FEP 26
Interviewee: Kerey Carpenter
Interviewer: Julian Pleasants
Date: June 11, 2002


P: This is Julian Pleasants and I'm in Tallahassee, Florida. It is June 11, 2002, and
I'm talking with Kerey Carpenter. Kerey, give me your background prior to
coming to work for the office of the Secretary of State.

C: I went to college at Valdosta State University in Valdosta, Georgia. I graduated
from there in 1989 with a degree in economics. I graduated magna cum laude. I
went straight from there and moved to Tallahassee, Florida, where I became a
student at Florida State University College of Law and I graduated from there in
1992. Immediately upon graduating, and prior to passing the bar, I went to work
as assistant general counsel for the Office of the Governor, and Governor
Lawton Chiles was in office at the time. I had that position for three and a half
years. It was strictly legal work that I did there for the most part. I worked on
various issues concerning the governor's duties and responsibilities and
providing advice on those types of things. I went from there and opened my law
office as a sole practitioner and did what I like to call front-door law, which is
basically when you take whatever comes in the front door. I did that for quite
some time and a little stint lobbying for the Florida Banker's Association, and
from there [worked] for the [Florida] office of the secretary, Department of State,
as assistant general counsel. I was hired there basically to work on litigation
matters because I had litigation experience and the general counsel at the time
was looking for an attorney with litigation experience and so that's what I went
there to do.

P: Who specifically hired you, Debbie Kearney [General Counsel, Florida
Department of State]?

C: Debbie Kearney.

P: And how long were you there prior to the election?

C: It was about a year and a half prior to the election that I started there.

P: What is your political affiliation?

C: I'm a registered Republican.

P: What about election day, what was election day like for you?

C: That was an interesting day. That started out very normal as it did for most
people. I actually had met with Mark Kaplan, who is the executive director here









FEP 26
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at Florida Housing Finance Corporation that evening because he had called to
talk to me about a position open at Florida Housing Finance Corporation that he
thought that I might be interested in. We met at Andrew's [restaurant?] that
evening after work to talk about it. I left it with him that I would think about his
offer and get back with him. Then I proceeded, as a lot of people did that
evening, to kind of hang around with friends and get ready to watch the results
come in for the election. I spent that evening with people that I know, people that
I work with, kind of watching the election results come in. It became pretty clear
that night what was happening with the election results and that was pretty much
what I did that day. A few days later when we were in the thick of it, I called Mr.
Kaplan back to tell him that I really didn't have time to think about it anymore and
that if he needed to fill it immediately he might want to look around. Anyway,
that's kind of what I did.

P: When did you actually go to the office to begin dealing with all of these election
issues?

C: The next morning.

P: Were you called in by Katherine Harris [ Florida Secretary of State, 1998-2002] at
all or was this an emergency or is this a normal day?

C: I knew it wasn't a normal day. No, I wasn't called in, that wouldn't have been
normal course of business for her to call me. I was assistant general counsel
and she most likely called the director of the Division of Elections, Clay Roberts
[director, Florida Division of Elections], and perhaps Debbie Kearney, the general
counsel. I was watching it unfold on television and knew that we had a very
busy day at the office and got there bright and early.

P: What was your involvement with the decision-making process as it unfolds?

C: Well, I was, I would say, in the thick of it with the other people that I worked with
there in the office and providing the very best legal advice that we thought we
could give the secretary.

P: Who decided to hire Joe Klock [attorney representing Katherine Harris during
2000 election] and why?

C: I was in West Palm Beach when that decision was made, so I wasn't there to
know who talked with who about it. The only person that I talked to about it was
Debbie Kearney. She and I talked while I was in West Palm Beach, and it


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became very clear that we needed help. We had three attorneys in-house and I
was in West Palm Beach, Debbie Kearney was in Tallahassee, and we needed
help. There were lawsuits being filed in multiple counties and in federal courts
and state courts and we couldn't be everywhere at one time. So. while I was in
West Palm Beach, Debbie and I talked about the fact that she was hiring a firm,
told me the firm that they had hired, and told me that they had an office in West
Palm that I would be able to be set up there with an office, which I did.

P: So you began working with Steele, Hector, and Davis [law firm] right away?

C: Yes I did while I was in West Palm Beach.

P: Who did you work with specifically from their office?

C: I worked with John Little and Joe Klock.

P: What you were doing in effect was taking advantage of their facilities and
resources, as well as advice?

C: Yes, in fact that was one of the reasons that that firm was selected was that they
had an office in West Palm Beach and that it would make it a lot easier for us to
work, since many of the lawsuits were pending down there, the butterfly lawsuit
and other suits were pending in Palm Beach County, and it was very important to
have an office there. I couldn't work out of a hotel room very well.

P: When the early decision-making was going on, who was in the inner group that
was discussing what should be done?

C: As far as within the secretary's office?

P: Yes.

C: It would have been the secretary, her chief-of-staff Ben McKay, I was there,
Debbie Kearney, Clay Roberts, um....

P: When did Mac Stipanovich [Republican strategist; chief of staff for Governor Bob
Martinez, 1987] come?

C: You know, I'm not real clear on that. I can't remember if he came. I was in West
Palm Beach for a week, I came back on [November] 17, and I don't remember
whether he was, I believe I came back on [November] 17, whether he was there









FEP 26
Page 4


when I came back and I believe he was, or if he came shortly thereafter, but it
was very early on. My understanding was that he was brought in because we
were short-staffed and that we didn't have a communications director and we
didn't have any way of fielding all of the press demands and the media demands
that were on our office. So that was my understanding, that he was brought in to
help deal with that. In fact, he assisted in writing many of the press releases.

P: Was that the decision made by Katherine Harris, to bring him in?

C: I don't know the answer to that, but I presume it would have been.

P: How much contact, if any, did you have with Governor Bush's office during this
time?

C: I didn't have contact with Governor Bush's office.

P: Did anyone else in the Secretary of State's office have contact with him?

C: I can't answer for them. It was all happening so fast. I don't recall hearing
people talking about any contacts with either of the parties, or what the
governor's office, in fact, Katherine told all of us very firmly that there was to be a
brick wall between our office and anybody from the governor's office and
anybody from either of the parties. We were to have a brick wall. It was very
important that we do that because we needed to give her legal advice and advise
her on what we believed was the right thing for her to do.

P: I know you weren't there the entire time, but how would you characterize her
mental state? How was she reacting to all this incredible pressure? Literally, the
whole world is watching her and her decisions.

C: I think she did an amazing job. I think she handled it with [grace]. She was
under the gun, she was under a lot of pressure, and I think she made very
principled decisions.

P: The Democrats argue that, because she was on George W. Bush's campaign
program, that that was an indication of being partisan and that was something
that she as a state official should not have done.

C: Yeah, I probably don't have an ability to talk about that particular issue.


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Page 5


P: I noted at the same time that Bob Butterworth [Attorney General of Florida, 1986-
2002] was also on Gore's campaign, and so the argument has been from both
sides. Would you say in the future that it would be better for public officials who
are going to have make decisions on issues like this perhaps not to be affiliated
with one of the candidates?

C: I don't know that I'm really able to answer that right now.
P: What about the decision to send you to Palm Beach, who made that decision and
why?

C: I don't think it was any one person that made the decision. It was a group
decision. I think that there was consensus among all of us that somebody had to
go there. Secretary [Harris] was named as a defendant and lawsuits there had
no representation. The cases were being heard on an emergency basis and she
needed legal representation there. So there weren't a lot of attorneys around at
the time, and it was decided by all of us that I would go and one thing that we
made very clear before I left was that I have a well-defined mission for going
there. Contact was made with Theresa LePore [supervisor of elections, Palm
Beach County] and...

P: The election supervisor in Palm Beach.

C: Correct. She concurred that it would be helpful for have somebody from the
Department there, and agreed that it would be good for me to come. In fact, I
knew Theresa LePore's office prior to this, because as I said, I was representing
the secretary in many legal matters before the election, many of them were
elections-related cases. Theresa LePore was named as a defendant prior to the
election day in Leon County here in Tallahassee, and her attorneys weren't able
to come for the hearing and I appeared as counsel for Theresa LePore here in
Leon County prior to the election. So, I already knew her office somewhat and
had spoken to her attorneys before about elections matters, so there was some
level of comfort with me being the one to go, with her office as well.

P: What was your specific charge?

C: The secretary actually issued a press release explaining what my responsibilities
would be, and [they were] threefold. I have a copy of that memorandum with me
just so that I could show you that we had detailed it in writing. This memorandum
basically states that the secretary's office had consultation with Theresa LePore
and was dispatching myself and one other person from our office, Paul Kraft, to
Palm Beach County. The purpose was threefold, one, to provide technical


5









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assistance in connection with the recount, if necessary. Second, to represent the
Department of State in any litigation with respect to the election results in Palm
Beach County. And finally, to provide the secretary with direct contemporaneous
information as events unfold in the coming days down there. So that was my
purpose. We talked very specifically about needing a defined mission when I left
and that's why we did the press release.

P: In Jeff Toobin's book, Too Close to Call, some of the Democrats argue that you
were sent by Governor Bush to halt the recount. What's your response to that?
C: I don't even think they knew I was going.

P: Governor Bush's office?

C: I don't think the governor's office knew I was going until maybe the press release
was issued. There was no contact with the governor's office about my being
dispatched to Palm Beach County. In fact, there was no mention to me or in my
presence about stopping the recount, never heard that phrase. The whole idea
was to represent the department in litigation, to help the Supervisor of Elections
office down there if they needed it, and to basically report back to the secretary
about what was going on. It had nothing to do with stopping the recount.
Nobody mentioned that to me before I left, or even while I was there.

P: And you were in constant contact, I assume, with the Secretary of State's office?

C: It wasn't constant contact, no. Because I found when I got there my cell-phone
didn't work very well and it sometimes worked and sometimes didn't. I didn't
have access to a phone to be able to contact them constantly. When I was able
to, I called and talked with Debbie Kearney, I talked with Ben McKay, and I
talked with Clay Roberts.

P: Talk a little bit about the security badge that allowed you free access to
everywhere.

C: Before I left Tallahassee, we discussed the fact that it would be a media frenzy
down there, as we all knew, and that there would be security everywhere around
the building that I was going to have to enter. The Division of Elections within the
Department of State has badges that they issue to certain officials within the
Division of Elections and the Department of State. So, I was issued a special
Division of Elections badge to carry with me, it's a wallet-size, fold-out badge, so
that it might be helpful for me in getting through security and the media. In fact, it
proved to be very helpful, because when I arrived in Palm Beach on Friday


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evening, I think my plane landed around 6:00 pm, and I rented a car and drove to
the Supervisor of Elections office where they were waiting for me to have a
meeting on Friday evening. There were security guards there and I was able to
show my badge and be cleared. So it did prove to be very helpful.

P: That was Friday, November 10.

C: Yes.

P: Describe the situation when you first met with the canvassing board. What was
that like?
C: When I first arrived in Palm Beach, I only met with Theresa LePore and her staff,
and I believe most of them were attorneys, although probably not all of them. It
was Friday evening before the manual recount was to begin, and we had
planned this meeting so that we could talk about any concerns that they had and
any help that the Department of State might be able to provide them. I'm trying
to think of who all was in the meeting, there was an attorney named Gordon.

P: Was Bob Montgomery [attorney for Theresa LePore in 2000 election] there?

C: No, he was not. And Bruce Rogow [attorney for Al Gore in 2000 election;
attorney for Theresa LePore in 2000 election] was not there either. Leon St.
John [Palm Beach County attorney] was there.

P: Now he is the county attorney.

C: He is a county attorney. There was another gentleman there and I cannot think
of his name right now, but I have his card in my materials. We met Friday
evening for several hours in their offices and talked, we went through the statutes
governing the recount, and we talked about what various things meant. If a
question came up that I didn't know the answer to, I called Clay Roberts, and
Theresa knew Clay very well. They had been working together on elections
things for many years. So it was, I was kind of a liaison in that way as well, to be
able to contact Clay and talk to Clay about issues that Theresa might be
concerned about, and then to give her information from the Department.

P: What was it like having to deal with the media? Everybody I talked to, Judge
Burton [judge, County Court, Palm Beach County; chairman, Palm Beach County
Canvassing Board], every time he went out, as many of you did, for cigarettes,
he was descended upon by the press. How did you manage to deal with that
and, in fact, did you talk to him at all?


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C: When I was there initially, which was Friday, there wasn't a media circus around
the building. There were some security officers and it was a very private, quiet
meeting and I don't even know that anybody knew that I was there, except
Theresa LePore and her staff that I was meeting with. Paul Kraft from our office
was there as well. The next day, when I showed up at the building for the
recount, of course the media was there. Again, my badge came in helpful to get
through the crowd, and I was able to really get through to walk right by them and
there were glass doors separating the lobby or the entrance area into the
supervisor's office and I was able to pass right through and go back into that area
with the other people who were working on the recount, and of course some of
the security officers who had seen me there the night before recognized me. So
I didn't have any problem getting through, I didn't have any, the media didn't
know who I was anyway, they didn't know why I was there, so I didn't have any
problems at all.

P: How about later on?

C: Saturday during the recount I served as an observer. I was there to answer
questions that might come up if I knew the answer. I didn't talk with any media at
all, and I talked with very few people outside of the supervisor, Judge Burton,
Carol Roberts, and maybe a couple of other people that I met when I was there.
The media still wasn't focused on me. I wasn't the center of attention, so to
speak, I was more of somebody behind the scenes trying to [make] sure things
were right and answers were given if we had answers. So I didn't have a
problem at all. It wasn't until say early Sunday morning around 2:00 am, there
was a canvassing board meeting that was done in front of the press. I think it
was at 2:00 in the morning, when Carol Roberts made a motion to do an entire
recount for the entire county and Judge Burton had asked that instead of doing
that, that they first ask for an advisory opinion from the Department of State. I
was there and [they] asked me to explain what that would entail, and I did. I think
that might be the first time I had any interaction with the media because it was all
on live TV. In fact, I heard later that the governor's office, I believe, realized I
was there for the first time when they watched that on TV. They saw me say on
television that you cannot do a manual recount for voter error, you can only do a
manual recount in the event the machines malfunctioned.

P: That was the official position of the Secretary of State's office?

C: It was. It was. I knew that before the meeting, because I had talked to Clay
about that. I didn't take that position on my own, no. I think that's when the


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media first realized maybe who I was. Things settled down on Sunday and it was
real quiet, and Monday morning, when I came back to the building and they had
another meeting to talk about the recount, and again then took the vote to ask for
the advisory opinion, that's when the media started approaching me and trying to
ask me questions.

P: Let's talk just a little bit about that. I've talked to Theresa [LePore] and Carol
Roberts and Judge Burton, and of course gotten slightly different interpretations
of the events. Carol Roberts said that what she was trying to do is to propose a
dual opinion, that they should also ask Attorney General Bob Butterworth his
opinion as well as Secretary Harris, and that Judge Burton, because he was
head of the canvassing board, went ahead with the request to Secretary of State
Harris not knowing that that request and the decision would be binding.

C: Well, it's interesting that she would say that. Initially on Saturday night or early
Sunday morning at 2:00 am, Carol Roberts did not want an opinion at all. It was
Judge Burton who made the motion to ask for it. I can't say whether or not he
knew it was binding. The statute says it's binding. We don't all have the statutes
memorized and we don't all know what's in the statutes. I can't say whether he
knew. We didn't even discuss that issue. I would have to say Theresa LePore,
she's been a supervisor of elections for many years and the Department of State
issues opinions, advisory opinions to the supervisor of elections routinely, and
has through the years, and she is very familiar with them. So I would have to say
that she knew. I don't know what Carol Roberts knew about that issue at the
time. Nevertheless, Theresa LePore did second the motion and, before the vote
was taken on it, Bob Montgomery and I was standing right beside him, or kind of
behind him and to the side and I saw him grab her arm and tell her that she had
to withdraw that. She was not to second Judge Burton's motion. She was to
only second Carol Roberts' motion.

P: I remember you said, no, you don't want to do that or something to that effect.

C: But he grabbed her arm very hard and she was, I don't know if I want to use the
word fragile state, she was not as probably solid of a state as she had been
earlier when I first met her.

P: Let me read to you what Judge Burton said about this issue. "There was a
lawyer from the Division of Elections here that evening who was basically telling
me she did not think the manual recount was lawful. I just simply felt we ought to
look into it before rushing into a decision. I was upset about the entire tenor of
the evening because it appeared to me to be more of a Gore/Lieberman pep rally


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and I felt our role was to be non-partisan." Then later he says, "I was criticized
for, on an election question, calling asking the State Divisions of Elections who
was in charge of all this." In other words, they're criticizing him for asking for that
opinion, which he thought was the logical approach.

C: It was a logical approach and in any other setting, I don't think anybody would've
questioned asking for an advisory opinion from the Department of State on any
election-related matter. They did that routinely and still do, and they've always
been given great weight. In fact, one interesting point that a lot of people don't
talk about is the attorney general's office had a website that specifically said that
they did not issue advisory opinions on the elections law because that fell within
the jurisdiction of the Department of State, and whenever in the past they
received a question about the elections code that it was referred to the
Department of State. So it was very routine and I think the judge was correct in
wanting to ask for the advisory opinion. I believe that Theresa LePore wanted
the opinion as well.
P: I should point out that in that website, it also points out that that opinion would be
binding.

C: It does.

P: Let me go back a little bit and talk about Judge Burton. He is obviously doing this
for the first time, was given this job at the very last minute, he does not know
Florida Election law, therefore, as he told me, he said "I was very confused about
what I needed to do." The argument from the Democrats was that you
deliberately mislead him into asking for that opinion and not telling him that it was
binding.

C: Sure they make that argument and it's not true at all. I can tell you that I did not
go down there thinking how I could come up with a way to get them to ask for an
advisory opinion, hadn't even crossed my mind, nobody had talked about it
before I went down there. The first time it even occurred to me to talk about the
advisory opinion issue was when Theresa LePore mentioned it to me, and she
mentioned it to me by asking whether or not we had any on file from the past
concerning manual recounts. And I said, well, I just don't know, let me call and
find out, and I called Clay Roberts, who would know, and asked him. He said no,
we didn't have any. And I said, how would you go about doing one? And he
explained his process to me and said that he would have to have a written
question, he wouldn't do it from an oral request, and that he could have one fairly
quickly because they have been researching the issue. So I went back and told
Theresa that we did not have any, but that we could issue one quickly if she


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desired one, and that's how it came up. I conveyed that same information to
Judge Burton, but not in a way of trying to persuade either of them for asking for
one, and I didn't urge either one of them to ask for one. I simply conveyed to
them that we didn't have any on file and that we could issue one if they wanted
one, and that we could do it quickly. And that was pretty much the end of the
conversation with either of them about that.

P: Obviously, from the point of view of Carol Roberts, there was some confusion
here about which was the legal authority. As you know, there is a suit in Judge
LaBarga's court, the Gore legal team has challenged the constitutionality of the
butterfly ballot. So I guess the critical issue was how could they determine
whether or not to do a recount. At what point did you talk to the canvassing
board about these issues?

C: About whether or not they could do a recount?

P: Yes.

C: Well, we talked to Theresa LePore that Friday night when I met with them. I
talked with her early on, we read the statute together, and looked at what the
standards were and when a recount could be done.

P: But did you talk to the canvassing board as well, or just to Theresa LePore?

C: I talked to the canvassing board as well, but not as a group. See, they could only
meet, because of the Sunshine Law [state law that requires disclosure of all
public documents/speech], they could not meet as a group unless there was a
public meeting and the media would be there. We didn't have a meeting like that
where we talked, it was more done privately, private discussions with them.

P: Did you tell that to Carol Roberts as well?

C: Tell her what?

P: About the recount, that it only would be legal if there were a malfunction of the
machines.

C: Yeah, we discussed that.

P: Because the law is a little unclear, it says vote tabulation.


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C: That was the issue. What did that mean, an error in the vote tabulation?
Anywhere else in the statute that it talks about vote tabulation it's talking about
the machines and the system. It's never talking about vote tabulation when it
talks about manually counting them, it's never used together. And that's when
we began to look at, what exactly did vote tabulation mean?

P: In that context, what was your view of the challenge to the butterfly ballot? The
Democrats argued that it was unconstitutional.

C: I can't say that I spent a lot of time on that particular issue. There were so many
other issues that I was working on down there and I believe it was ultimately
found in court that the butterfly ballot was not illegal and, in fact, I think when I
got back to Tallahassee, we did take a look at that particular ballot and found that
it did comply with the statutory requirements for a ballot.

P: As the Florida Supreme Court also determined.

C: Correct. I know there are many people who claim they were confused by it, but I
don't believe it was an illegal ballot or an unconstitutional ballot in any way.

P: The other issue that comes up, 96 percent of the people in Palm Beach County
voted correctly.

C: Is that right?

P: Yes.

C: How do you know that?

P: We talked to Theresa LePore and got all of the information about the voting. And
that's still four percent, it is a lot of votes because there were something like
622,000 votes, and in a close election, four percent is huge. And normally it's
much less, maybe one or two percent. So surely that confused some voters, but
as Judge Richard Posner [Judge, 7th Circuit, U.S. Court of Appeals; author of
Breaking the Deadlock: The 2000 Election, the Constitution and the Courts]
argued, if the Democrats were confused between, as you pointed out, voter error
and machine error.

C: Sure. And that was the position of the department, that you don't do a manual
recount for voter error. The manual recount was set up to be used when the
machines malfunctioned. In fact, when the recount statute was passed, it was in


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response to an election where the machines malfunctioned, and that was when
that statute was passed.

P: Is that Hurricane Andrew, 1990?

C: It was not a hurricane-related issue. The machines just didn't count the ballots
correctly in a local race.

P: Also confusing is the section that says the votes shall be and may be. How did
you resolve that? Because the canvassing board obviously was confused about
the meaning of that.

C: The shall and the may wording, I think, only applied to Secretary's Harris'
responsibilities.

P: Whether to actually count the re-votes, to certify the recounts.

C: The "shall" and "may" issue, I understood only came up when the issue was,
shall she certify on a certain date or may she? Did she have discretion to not?
It's difficult to read those together and that was the issue that was in front of
Judge Lewis here in Leon County and he ended up ordering that she needed to
use discretion in way that was rational and reasonable, which is when the
secretary came up with the criteria that she would apply to any request for an
extension of time.

P: Here we come to something like a major event like a hurricane or a blackout or
something like that.

C: Correct.

P: And that was a formal opinion issued by the Secretary of State's office?

C: No, I don't believe it was. I believe it was a memorandum or a letter issued to the
supervisors of elections letting them know that she would extend the deadline
only in those types of circumstances, and those circumstances were gleaned
from cases that her attorneys had read and put together, criteria that different
judges had found to be reasonable things.

P: Hurricane Andrew was one example.

C: That was one example.


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P: Mac Stipanovich had an interesting reaction to that question, he said it didn't
matter. Either way, the secretary was right, because if it says "may," that's up to
her discretion.

C: That's correct, except that Judge Lewis told her that she needed to use
reasonable discretion, which she did.

P: In other words she could not, out of hand, arbitrarily reject those.

C: That's exactly what the judge ruled. It's arguably, even though we may have
interpreted that she had a choice there, Judge Lewis was telling her that she had
a limited choice, in a sense.

P: Still it was her choice and if she could demonstrate that it was reasonable, then
that would be okay.

C: It would be honored, and it was honored by him.

P: In Lewis 2 he allowed her to certify the votes.

C: That's correct.

P: Let me go back to another issue that comes up, and you may not have had
anything to do with this, but at the very beginning, one-half of one percent vote
triggers an automatic recount. The question has always been, and the election
supervisors I talked to were very confused about this, some of them, eighteen
counties, retallied their totals, did not actually recount the votes. What is your
sense of the meaning of an automatic recount?

C: I think they're supposed to run them back through the machine and count them
again. I don't think it's tallying the machine. I don't know how you can verify just
by looking at the machine again. And I do know that there are some supervisors
of elections, one of them here in Leon County, who had their own approach,
which was a different approach than what I believed was the correct one, and
maybe they're correct, who's to say? But their approach was to look at the
machine to see if it tabulated correctly as opposed to running them through. So I
know that there are counties that didn't run them through.

P: A million and a half votes, eighteen counties, a lot of votes. Here's Clay Roberts,
speaking on June 22, 2000. "Taking the totals is not enough. In order to do a


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recount, you should run every ballot through the machines again. The Secretary
of State's office believes this is the only correct way to conduct an automatic
recount." The question is, why didn't Clay Roberts or Katherine Harris clarify that
to all of the elections supervisors?

C: I didn't talk to either one of them about that.

P: As we go through this process, Katherine Harris is going to be making a series of
decisions. Is she conveying these decisions to you ahead of time, are you
getting telephone calls, are you watching it on CNN? How were you being kept
up with the decisions she's making?

C: That was tough because everything was happening so fast. I can just start with
my time in Palm Beach. One of the difficulties there was knowing what's going
on in Tallahassee. In fact, I was there on Monday, which was the day that the
canvassing board voted to ask for the advisory opinions and the media were
asking me questions about what's going on in Tallahassee and I didn't really
know. So I called to find out and that's when I learned that they were issuing a
statement that we would be certifying the election and would be following the law,
period. I found that out by calling to find out what's going on, and they said that
they had just issued a press release about that. I said, well, can you fax one to
me down here since the media down here is asking me about it and I need to be
informed. So they faxed it to me. I knew it was something the media would want
to see, so I made copies of it while I was there and handed some out. That was
one attempt at trying to get informed on the decision-making and what was going
on. When I came back to Tallahassee, we had so many lawsuits pending, I was
buried in writing briefs, writing pleadings, going to court, and pretty much
received most of my notices about hearings from watching television. There was
a TV set up in the room that we worked in and, all of a sudden, we would find out
a brief was due the next day at noon or we had to appear in court in five minutes,
and we'd run across the street.

So it was very fast-paced and decisions were made deliberatively and with
whoever was available to work on that particular issue, myself sometimes,
Debbie Kearney sometimes, Ben, it was just all happening very fast. We would
talk about important issues together as a group sitting around a table in the
conference room and reach a decision and then once a decision was made, we
all started working on it.

P: For the record, how long did you actually stay in Palm Beach County and why did
you leave?


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C: I was there for one week and I left because most of the cases were being
transferred to Leon County and the focus was going to be on Leon County for the
litigation, vote appellate cases, and trials. There were enough attorneys in the
Steel Hector firm and the West Palm Beach office to represent the Department in
any cases that stayed there. I was needed to be back and in fact Debbie
Kearney said, get on a plane and get back, we need you here. So that's when I
came back.

P: So that's November 10 through November 17?

C: I believe it was the 17th when I came back.

P: Another issue that is very important is that Dade, Broward, and Palm Beach are
going to ask that the manual recounts be included in the statewide certification.
What she does is ask them for a letter explaining why they should be included.
Is that correct? Or at least they have to write a letter explaining why they need
an extension.

C: That was following Judge Lewis' order. That was the reason for that, was just to
put them on notice that these were the criteria that had been established and
that, if you need more time, please let us know which of these criteria evolved
with them.

P: Did you have anything to do with...

C: I didn't work on that issue. There were I believe a team of lawyers from the Steel
Hector firm that had been researching to find what those criteria should be. I was
there in the office when that memo was created and we all talked about it as a
group, but I didn't do any of the legal research behind it.

P: Both Judge Burton and Mac Stipanovich indicated that these requests were not
very sound or very effectively-written. The opposition always says that Katherine
Harris had already made up her mind and did not intend to allow any extensions.

C: She did not have her mind made up. She definitely considered everything very
carefully, there's no doubt in my mind about that.

[End of side Al]


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P: One issue the Democrats brought up, and a lot of the press, is that Katherine
Harris could have withheld certification until November 17 when all the overseas
and absentee ballots came in, and that that would not have made a significant
difference. Why do you think she did not?

C: I think she followed the law. I think the law was very clear and I was a legal
advisor, so that is an issue that I certainly researched and I believe the law
required her to do something by a certain date, period. She was determined to
do what the law required of her to do, and I think that's a very good thing that she
did, because if she hadn't, if she had altered and done something different than
what the law required, she would have been criticized for doing that.

P: Although she did have that discretion.

C: She had discretion to, as Judge Lewis said, to extenuating circumstances. But
the law said she had to certify the election on a certain day and the fact of the
matter is, all of these issues that were being raised in lawsuits asking for
recounts could've been done in the protest period. So, end the election results,
and certify the election the sooner you do that, the sooner you can start the
protest period and that can all be done much more uniformly, which is how it
should've been done.

P: I noticed that in Lewis one, it's very clear when he makes that decision, he
assumes that the Gore people have an alternative, that they can go directly to
the contest.

C: Correct. I'm sorry, I said that backwards, didn't I? Yes, the statute was set up so
that there was a very brief period for recounts if needed, and if allowed, and that
was to end very soon. Then the second period to contest the election would start
and by lengthening one, you necessarily shorten the other.

P: Do think that was their great strategic mistake? Not going to the contest sooner?

C: I think that was a political strategy they made and I believe, and this is pure
speculation on my part, that they didn't want to be perceived as having lost in
challenging an election. They didn't want it to end so that they wouldn't be
viewed as having lost. That's pure speculation, but it makes sense, from the
strategy that they displayed.


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P: On Thursday, November 16, the Florida Supreme Court is going to intervene and
they're going to delay the actual certification, will not allow her to certify. Were
you surprised that the Florida Supreme Court got involved?

C: No, I can't say I was surprised by that.

P: Were you surprised at their decision? Because now, Palm Beach can legally
begin their recount.

C: I'm not going to say that I was surprised, I can say that I was disappointed in that
in my work as an attorney for state officials, I always believed that it was well-
established law that a department charged for implementing the statute had the
expertise and the knowledge and the familiarity with the statute at hand to be in a
position to interpret it, and courts generally give deference to that. So I was
disappointed that that didn't happen.

P: Let me go back briefly. Judge Burton mentioned that he thought it would have
been fine for Katherine Harris to allow until November 17, and the way he said it
is, if we wait, we have to wait for the overseas ballots anyway before it can be
formally certified, why not give three more days for the recount? He said as long
as they got the results in by November 17, I do not think there's a court that
would have touched that decision. What would your reaction to that be, that the
courts would have said that she had the legal discretion to wait until the 17th?

C: I believe they weren't even done with their recount by that date.

P: No they weren't, but this is theoretical basis. If she had done this, that it would
not have been challenged in court.

C: I really don't know how that would've played out. I can't say that I focused on it
from that viewpoint.

P: Discuss the circumstances in Palm Beach. One of the things that I think is not
well-known is that both Theresa LePore and Carol Roberts and perhaps Judge
Burton as well had deputy sheriffs following them around, taking them home at
night, each of them had thousands of threats, death threats, all of these sorts of
things. Were you aware of this?

C: I was not aware of any threats being made. I know that there were deputies
around. They were around everybody inside the counting room area. I was
somewhat aware of the fact that they were escorting them to and from.


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Although, they appeared to have fairly free movement when we were at the
building of the Supervisor of Elections. In fact, at one point in time, when I went
with Carol Roberts to her office, which was on another floor. We rode the
elevator up together and it was just the two of us and nobody escorted either one
of us through the lobby and into the elevator and up to her office.

P: Well I do know that, according to Carol Roberts, that a deputy took her home
every night and stayed at her house.

C: Oh, I wasn't even aware of that.

P: You had none of that?

C: No, I did not. None, it was pretty quiet, I think. I stayed at the Radisson and one
morning when I left there was a reporter outside my door. I asked him not to do
that again and he didn't.

P: Let me ask you to evaluate the performance of the canvassing board. Start with
Judge Burton. Did you feel that he did his best to be non-partisan?

C: Yeah, I do. I think that his objective in serving on the canvassing board was to
do the right thing. I truly believe that that's what he was in search of, was doing
the right thing. And I got that from both observing him during the meetings and
also from talking to him privately. He just wanted to know what to do, and
struggled with it. There was one point in time, and a couple of these books
mention it, that he and I had a conversation about the standard that was used to
determine the voter's intent. We were on a break when this came up and Judge
Burton actually came to me and asked if he could talk to me privately, and there
were people all around, so we went into a room privately.

P: And he knew you were representing the Secretary of State, right?

C: Yeah. I read that he didn't know that, but I didn't keep that a secret while I was
there.
P: You should've showed him your badge.

C: I think he knew about my badge, and he knew that I was calling the Department
of State to get answers. It wasn't a secret where I came from, but we did go talk
about that, and I didn't impose any of my views on them. Basically in that
conversation was, he said that he was uncomfortable with the standard that was


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being used and he thought that they had digressed into a standard where things
were being counted as votes that he didn't believe were votes.

P: This is the sunlight issue?

C: Yeah. And he said, I'm very uncomfortable because I think that we're finding
votes that don't exist because of the standard. And his question to me was, can I
change the standard back to what we started out that it would be? Which was
the different standard than they had digressed to during the recount.

P: We're going back to the 1990 standard, is that correct?

C: I believe that was the 1990 standard, but I'm not familiar with the date.

P: The 1990 standard that indentations do not count as votes.

C: Right. They were using a standard that was a little less restrictive than that and
he thought votes were being counted that weren't really votes. He wanted to
know what I thought about, from a legal perspective, what I thought about
changing the standard after they had already started, but changing it back to
what they meant to be doing in the first place. I said, as a canvassing board
member, [if you] believe you're voting for something to be a vote that you think is
not a vote, just remember that when you're called to testify about how you
determined what votes were, you're going to be challenged on that and you need
to be comfortable with your decisions here that you can stand behind them. He
thought that was good. I just reminded him that he would be challenged on his
decisions later and he say, well, how can I change it now that we've started? My
advice was, I didn't know how you would do that, but I did suggest that if you do
that, you need to start from the beginning again. You don't want to have
changed the standard midstream and have one batch looked at with one
standard and another batch looked at with another standard, which means you're
going to need to go back and redo the ones you've already done. He agreed
with that advice and actually took it back to the other two board members as a
motion when they started back up, and they in fact did agree with him and that
they had gotten away from the standard they had intended to use and voted to
start over.

P: As a matter of fact, when I talked to him, he said he thought they were actually
creating votes.


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C: They were. That's what he told me. But he was uncomfortable because he
didn't know what to do about it, and that's why he came to me. I never thought
for a minute that he wasn't comfortable asking me that question or that he
doubted the motive behind any answer that I gave him, we were all just
searching for the right thing to do.

P: How would you assess the performance of Theresa LePore on the canvassing
board?

C: I thought that Theresa LePore did a good job under really tough circumstances. I
think she had a lot of pressure on her. I saw it directly, in particular from Bob
Montgomery, somewhat from Bruce Rogow and perhaps, I'm speculating on this,
Leon St. John. She did struggle to do the right thing, and I had conversations
with her about the advisory opinion as well. Not in a sense that I was trying to
ask them to ask for one and that she was looking for the answer and she came to
me and said, do you have any on file? I think she hoped that there was so that
she, regardless of what it said, it didn't matter. She was hoping there was
something there so that she could have direction from somebody that had
created this prior to all of the events happening. I think she was very
disappointed when I came back and told her one did not exist, but I did tell that if
she wanted to ask for one, how quickly we could have it to her. She indicated to
me that she wanted to ask for one and that she also agreed that the manual
recount should only take place if the machines malfunctioned. She agreed with
the department's position on it, so she was comfortable in asking for what she
knew was a binding opinion because she agreed with the answer that we had
already announced. It wasn't a secret what the opinion would say.

P: It's obvious from talking with her that the whole process was then and still is
traumatic for her, not only trying to do the recount, but having to deal with all the
criticism from the butterfly ballot.

C: I think that if her attorney had been there, the one that she relied on on a daily
basis who was on vacation, Denise. I think things might have been a little easier.
As it turned out, she did get pressure from Bob Montgomery and did cave in.
That was the only point that I was disappointed in what she did, because she had
told me prior to that canvassing board meeting that she agreed with the
Department's position that she wanted the advisory opinion, but then, when he
grabbed her arm the way he did, she did withdraw seconding that motion. I was
disappointed at that point in time in her, although I understand the pressure that
she was under. She didn't have her usual team of advisors around her and I
understand what happened.


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P: And ultimately she voted in favor of the recount.

C: On Monday she did.

P: Carol Roberts?

C: I had lost contact with Carol Roberts. She wasn't around quite as much during
breaks as other were. I don't know where she always went, but often she would
step outside to smoke a cigarette. At the time, I smoked as well, which you
probably know from reading a couple of these books.

P: Benson and Hedges Lights, I believe.

C: Yeah, something like that. So the smokers would step outside and I chatted with
her on the cigarette breaks. I got the impression from her that she wanted a
certain result. I don't think she hid that or intended to hide that. I think she
appeared very partisan, which was probably not a real good idea, but she's a
politician, I'm not. She did what she believed I was the right thing to do, but she
clearly wanted a result from the beginning before they even started the one
percent sample recount, she stated that they were going to count the entire
county, that they were going to find enough votes there to count the entire
county. She had an end result in mind and that was a county-wide recount
before it ever started, and she told me that.

P: The first one-half of one percent, it was something like nineteen votes for Gore,
which she says, if we do this county-wide, that would be 9,000 votes or whatever
for Gore.

C: That method of extrapolating votes was questioned at that time by all of us, and
most adamantly Judge Burton, who thought that was not a mathematically-
correct way of extrapolating the votes, and he wanted to know if we had any
advisory opinions on that topic, and of course we didn't. But I thought statistically
that can't be the case when you pick three counties that are weighted a certain
way, you can't extrapolate the results from those, or three precincts, you can't
extrapolate that county-wide.

P: Plus they were heavily Democratic.

C: That's what I meant by weighted a certain way. The statute allows the party to
challenge [any county].


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P: But they have that choice.

C: They get to choose the three, and then in order to round out the one percent,
Theresa LePore's office was able to pick the remaining one, and they did it
mathematically. They found the smallest one that they needed to get to one
percent, and that's how they picked the fourth one, basically.

P: Carol Roberts, in my interview with her, admits being partisan and argues that
she was so adamant about having all the votes counted because she saw this as
a violation of the voter's right to vote, that these votes were not being counted.
She also argues, and to some degree Judge Burton verifies this, that once she
actually got to the recount, that she was in fact fair in determining which vote
would go for Gore and which vote would go for Bush. What was your reaction to
that?

C: I can't say, because I wasn't the one looking at the ballots to know why they said
this was a vote or that wasn't a vote, so I really wouldn't know, but if Judge
Burton felt that she had done it fairly, I wouldn't doubt his take on it, because he
was sitting right there looking at them with her.

P: They had a very strong conflict earlier.

C: They did?

P: When he was angry at her, and I won't use the exact term, but when she brought
up the vote for a recount, he said, you sandbagged me.

C: Yeah, he did say that.

P: Not exactly what he said, but that was close.

C: [He] was not too happy with that moment. Although, I have to tell you, I left after
that. I was in court for a few days down there. I did not go back to the building
after Monday, so when they actually started the recount of the entire county, I
was not present. So I wouldn't know how they counted the votes.

P: Would you have any view-Bruce Rogow, when I talked to him, he, I think,
convinced Theresa LePore that, because there was an issue of which opinion to
accept, Secretary of State or the Attorney General, they ought to appeal directly
to the Florida Supreme Court. A lot of the Democrats have criticized that


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because it took time. Do you have any reaction to that decision to appeal it to
the Florida Supreme Court?

C: I don't know what his thinking was or what his strategy was, but why not take it
straight there then? Why take it to a lower court and then have it wind its way up
there? I think that there was a legitimate concern that, since the statute says it's
binding that you have to follow, and I believe that Carol Roberts was okay with
disregarding it and the other two were not. So that meant not doing a recount at
all, you had to follow it. So the only way to not follow it, if they wanted to not
follow it, would be to get a court to say the order was not valid. So the quickest
way to do that is to go straight up, otherwise you're going to have appeals. Even
though you can fast track them and write a brief in a day, they still take some
time.

P: Some people I've talked said they wrote briefs in two hours.

C: I don't think that that was bad advice on his part.

P: What about Joe Klock's decision? Again, I talked to Mac Stipanovich and he
indicated that they didn't clear it with him, he filed a suit at the Florida Supreme
Court in behalf of Katherine Harris to halt the recounts. What was your reaction
to that suit?

C: I don't think that was a petition to halt the recounts as much as it was to...

P: It was to consolidate...

C: Yes. The idea was to bring everything into everything into one forum and to have
a uniform result, so that instead of having challenges all over the State of Florida,
all of which had the same defendants, perhaps some different parties, but
Katherine Harris would have been a defendant in all of them. There was no way
to represent her efficiently and effectively all over the place at the same time.
The law is really clear when you have a statewide elected official who's a
defendant in a lawsuit, the proper venue is Leon County. So we were not
successful in convincing some circuit judges to transfer venue to Leon County
and that suit was filed in an effort to consolidate everything into one forum and to
have a uniform result instead of haphazard results all over the state. I think it
was a very good move on our part to do that.

P: But Joe Klock, when I talked to him, did admit that part of that brief was also to
halt the recount while the consolidation took place, and in retrospect, he felt that


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was probably a mistake, because it made it appear as though the Secretary of
State had gone out of her way to file a lawsuit to stop the recounts. She had her
own process of stating that the recounts will not take place because of the law,
and that that was, politically, not a smart thing to do.

C: It might not have been politically a smart thing to do. But you said something
earlier and that was the decision to file that wasn't cleared with Mac. It wasn't my
understanding that we were clearing things with Mac in the sense of we were a
group working together really hard and the attorneys were giving Katherine legal
advice. I perceived Mac's role more as dealing with the PR issues, and if he
thought the attorneys were not explaining in a way that would be acceptable from
a PR perspective, he had no hesitation in letting us know, but it wasn't a matter
of is this okay with Mac? Although we certainly value his opinion.

P: I think, from his perspective, while it might have been logical legally, that in the
public relations battle...

C: He was concerned with the PR, and the lawyers were concerned with protecting
Katherine from a legal perspective and, you know, they're often competing
interests. That would be normal in any public official's office, the lawyers on one
side and the PR guys on another, and they often have different takes on how
things should be handled. That wouldn't be out of the ordinary.

P: Comment on the work of Ben Kuehne. What was your assessment of his
performance?

C: I thought that he was rather annoying, quite often, down there in Palm Beach
County during the recount. I do realize that he was doing his job and doing it the
best way he thought and the most effective way. He was rather effective quite
often in making his view known and attempting, I think, to persuade the board to
do one thing or another based on his announced views. The one troubling thing
that I saw were instances where he was having private caucuses with Theresa
LePore's, one of her staff attorneys, and it just seemed somewhat inappropriate,
and there were a few times at least I saw them huddled off talking about an
issue.

P: This is the county attorney?

C: Yes. And I thought that was very inappropriate because Ben was...

P: And his name is Leon?


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C: Leon St. John.

P: He was obviously very exercised when the standard was changed to a more
strict standard and had a lot of protest during the time. From the Democrats'
point of view, Ben Kuehne's point of view, the worst person was Mark Wallace
[attorney for George W. Bush in 2000 election].
C: He was annoying too. They were both annoying. In fact, at one point in time,
both of them were not too happy with me, both of them. So I know there have
been accusations from Ben about my role there. But both of them were not
pleased with me when I was talking to Judge Burton about the process, and both
Ben and Wallace wanted to be able to object verbally when the counters were in
there doing the recount, not the canvassing board, but the actual counters. If
they had an objection to what one of the counters counted as a vote or didn't
count as a vote, they wanted to stop everything and have somebody come over
right then and make their case known and put it on the record. Judge Burton
thought that was ridiculous that they would be able to interfere with the process.
He thought they could observe the process if they wanted to and they could
speak their objections all they wanted, but they weren't going to slow it down in
the sense of telling people that you have to stop now while we have your
decision looked at. The judge looked at me and said, what do you think? And I
said, I think that's right.

Observing is one thing, but interfering and shutting it down is another, and
neither Ben, nor, neither one of them were pleased with that. So I don't know
how they ended up with, well, I do have my own guesses of how Ben ended up
with his perceptions of my work there, but if he'll go back and think, he can recall
that I didn't side with either one of them on that issue.

P: As a matter of fact, Judge Burton was very upset with Wallace and threatened to
have him removed.

C: Really? I didn't even know that.

P: And also Carol Roberts told me she told him that she was going to have to give
him a time-out if he didn't settle down.

C: Yeah, there was a lot of that going on. It was very tense. There were a lot of
verbal exchanges between all of them. But as far as Ben, I know I read in one of
these books that he was suspicious of me because I came from the Department


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of State, but I don't believe that I did anything down there to cause suspicion. He
was just automatically suspicious because I came from the Department of State.

P: There's this public presentation from individuals. Each side brought in important
people, the Governor of Montana [Mark Racicot] came and Bob Dole, all these
people came down to observe, and frequently on CNN, the public was hearing
that there was all this chaos going on in there and people were eating chads.
Did you see any of that?

C: I was there for just both of the sample recounts, I wasn't there for the entire
county, but I can tell you that when I was there, there were chads all over the
room. You could just pick them up off the floor and off the chair, they were on
the table. There were chads everywhere. How you can get an accurate recount
under a system like that is beyond me. I don't know because there were chads
all over the place. Sitting in the room, they would fall on you, and I sat in the
room during the sample recount and I had an envelope and I actually picked up
chads and you could just put them in an envelope. It was that easy, you didn't
have to hunt for them. It wasn't like blanket-coated, but you couldn't miss them,
they were there.

P: One election supervisor told me that you keep putting these ballots back through,
that some chads are going to fall off.

C: Sure, they're going to.

P: Let me read you a little bit about a response from various people, Carol Roberts
in particular. She indicated that she felt like you were there to protect the Bush
campaign. Judge Burton and I quote, "apparently thought she was an unbiased
elections expert and therefore was somewhat persuaded by her arguments."
What's the reaction to that sort of statement?

C: Which statement? You made a couple of different statements.

P: She sees you as a person who is there to make certain that George Bush is
elected, in effect.

C: She didn't behave in a way while I was there to make me believe that she
thought that. She was friendly to me. We chatted during cigarette breaks. I
went to her office with her, and engaged in small talk. I didn't necessarily
appreciate her partisan approach to the decisions she made during the recount,
but I never got the impression from her then, at that time, that she thought I was


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there for the Bush team or in any way to obtain a certain result. I think that if she
had felt that way, as outspoken as she is, I have to believe she would have said
something to me or done some type of behavior that would have let me know
that she believed that.

As far as the others, I don't think they can point to any one thing that I did
that would lead to a conclusion that I was biased or was leading to a particular
result. I think all that came up afterward. You know, when I asked for this
advisory opinion, and there's been some criticism that I didn't tell Judge Burton
that it was binding, it didn't come up, it didn't even occur to me. We didn't talk
about that, but he knew what the opinion would say, as did Theresa LePore.
Everybody knew what the opinion would say, so if I were trying to trick them into
doing something because I had my own agenda, I'm not sure why I would've told
them what the opinion would say ahead of time.

P: Because otherwise they might not ask for it.

C: Right. And I told the world what the opinion would say, I did it on live television at
2:00 am. I said exactly what the opinion would say and told them that they could
have it within twenty-four hours if they wanted it. And they asked for it. So I find
it hard to understand why now, after it's all over, that I somehow tricked them into
asking for this advisory opinion and that I was so manipulating in doing so when
that in fact is really not how it happened.

P: What's your assessment of the books written about this election? Let's take first
Jeffrey Toobin, Too Close To Call. In his book, he says "it is no exaggeration to
say that Kerey Carpenter and Charles Burton won the presidency for George W.
Bush with their decision to go to a stricter standard."

C: That's just a hard sentence to react to, isn't it? I have to say that, numerically, he
has a very good point. The numbers, I think, show that Judge Burton's action the
canvassing board and asking them to go back to the standard they had originally
tried to start out with did certainly reduce the number of Gore votes, but they
were votes that Judge Burton didn't believe should have ever counted as votes in
the first place. By the numbers that they were getting before they changed the
standard, Gore probably would have had more votes, although it's hard to say for
sure. That wasn't my decision though. Judge Burton did come and talk to me
about the issue and I gave him my reaction. He was kind of talking out loud
about what he was thinking and getting my reaction to it, and I gave him my
reaction to it. So, I think that the judge made the right decision and I don't think
that I gave him bad advice on the issue either. I think that it did have an effect,


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though, in a sense that it changed the amount of what Judge Burton called
creative votes. Since it changed the amount of creative votes, I think it probably
did have an effect.

P: In your view, would there have been enough votes to change the outcome of the
election?

C: It's just such a speculation because the standard they were using, Judge Burton
was uncomfortable with and thought that they were creating votes and who's to
say, if they had continued with that standard, what the count would've been in the
other precincts, I just don't know.

P: Let me briefly get you to respond to a couple of comments. This is Bruce
Rogow: "She was good, she was quiet. It was clear to me that she was there to
protect George Bush."

C: Bruce Rogow said that?

P: Yeah.

C: About?

P: You.

C: About me?

P: Yes. He also said he took you to lunch.

C: He did. And I'm surprised that Bruce said that. I knew Bruce before I went down
there, because he's a very good appellate lawyer and he argued a case at the
Florida Supreme Court on another elections-related case prior to November 7,
and I worked on that case representing Secretary Harris and I worked with
Debbie Kearney on it, so I was at the Florida Supreme the day that that was
argued and I met Bruce. He was the only familiar face down there for me when I
went down there, and when I saw him, I did go up and chat with him. He did
invite me to lunch, I believe it was on Saturday. It was very quiet, it was when
they were trying to get the ballots set up and get ready for the sample count and
he asked if I wanted to join them for lunch and I didn't have any other offers just
knocking on the door and I thought, sure, why not. So we did go to lunch and we
had a friendly lunch, I met Bob Montgomery there, and we did not talk about this
election stuff and the recount. It was more of a social lunch. But we didn't talk


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about positions or what my goal was there, so I don't know where he comes up
with the statement that I was there to protect Bush.

P: I should point out, if you take his interview in totality, it's very clear that he is not a
partisan. That he did not see all of these conspiracies that some of the other
Democratic lawyers I've talked to did. So that balances a little bit. Was Toobin's
book accurate?

C: No. No, it's not. No, because there are many times in this book where he states
that I was under the tight control of the Republican Party. Not only is that
inaccurate, it's completely false. I wasn't under the control of the Party in any
way, shape, or form. I was there simply in a capacity as an attorney to represent
the Secretary of State and the Department of State and doing the best job I
could. I read in the book where there was a pipeline of information going, and
that's just not the case. He implies that the notion for this advisory opinion came
out of Tallahassee and through the pipeline to me, and that I somehow
persuaded the canvassing board to ask for it. Nothing could be further from the
truth. The notion of the advisory opinion came from Theresa LePore, who asked
me about it.

In turn, I asked Clay Roberts about it. Clay and I talked on the phone
about what the decision would be, how the statute would be read, and how
quickly we could issue an opinion without hanging up. So he didn't go consult
with somebody else, who consulted with the party, to get his answer to feed back
to me. Clay and I were talking directly and without anybody else being involved
in the conversation. I got off the phone with Clay and took that answer directly
back to Theresa LePore, who had asked for it. So there was no party
involvement and in fact, I believe that from my understanding, from finding out
later, the Party I guess, or the governor's office, found out about that whole
notion on television at 2:00 am when I announced that we could do such an
advisory opinion and what it would say. There was no discussion with them at all
about it.

P: I'd like to point out, I talked with Lucy Morgan of the St. Pete Times and she said
they searched and searched and searched, and could not find any direct
communication between the governor's office and Katherine Harris' office and
actually said that there was not a great deal of love lost between the two anyway,
which seemed illogical that he would have been telling her what to do.

C: Yeah, there was none of that going on.


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P: Can I beat this dead horse one more time?

C: Sure.

P: This is again Ben Kuehne and a lot of this, I think, if I may interject, is driven by
angst after the fact. "Kerey Carpenter was sitting down there because Katherine
Harris was told by Bush/Cheney to get someone in all those counties. We need
to not only know what's going on, we need to be able to stop what's going on."

C: It's completely untrue. In fact, in this other book, you'd asked me about this book
by Jake Tapper [journalist for salon.com, author Down and Dirty: The Plot to
Steal the Presidency], he came right out and stated at the end of the book that I
had abused my position. There are absolutely no facts in the book whatsoever to
even support that statement. Everything that I did was directly related to
providing the best legal advice that I could, and none of the input that I had with
the canvassing board was unsolicited. Theresa LePore knew I was coming
down, was happy that I was coming down, was happy to see me when I got
there, and came to me with questions, Judge Burton came to me with questions,
and I have to believe that if they got the notion for a minute that I was being
biased or not giving them fair and objective answers, they wouldn't have done
that.

P: Tell me what happened after you left Palm Beach on November 17, and now you
go back to Tallahassee. What are you involved in at this point?

C: I was involved in all of the litigation, working on pleadings, doing legal research,
writing briefs, going to court. I think Secretary Harris was a defendant in forty-
two lawsuits during that time period. They were in federal courts, state courts,
appellate courts, and trial courts, and we had a core team of lawyers that were all
working together in shifts, basically. We started out all trying to work around the
clock and then we found that wasn't going to work. We ate together, breakfast,
lunch, and supper. We slept at the firm, I actually fell asleep on a table one night
and the morning-shift came in and woke me up and took over from me, I was
working on a brief. Literally what we do is, we would start writing a brief one day
until we were about to drop and the next shift would come in and pick up where
we left off and start working on it and file it before we woke up. It was that fast-
paced the entire time. I basically just did legal work for the rest of the time.

P: Any specific cases?

C: All of them. I've got some briefs with me.


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P: Did you work with the military ballots at all?

C: I was not involved in that case as much that I can recall. I did make an
appearance in front of Judge Smith [judge, Leon County Circuit Court], I believe,
in that case.

P: This is Bubba Smith?

C: Yeah.

[End of side A2]

P: Comment a little bit about the military absentee-ballot issue. You said you
appeared in Judge Bubba Smith's court? What was the purpose of that
appearance?

C: I was there with, I believe Vikki Webber, who made an argument to the judge
about these ballots. I can't remember what the specific issue was because it's
been so much time now and there were so many cases.

P: Ultimately, the Bush team, and I'm not sure whether this is related to what you're
doing or not, they decided not to file an appeal in Judge Smith's court, but [Fred]
Bartlit [attorney for George W. Bush in 2000 election] filed individual appeals in
fourteen counties. I know this is separate from what you were doing and I was
just curious if you recall what your appearance before Judge Smith was? What
was her position? What was Secretary Harris' position on the military ballots?
Obviously, it's a very conflicted issue because there's a 1984 consent decree
and an administrative regulation and the legislature changed the law again.

C: I'm not having a real good recall on this case, but I know I was in the courtroom
when it was argued in front of Judge Smith and he, I believe, was expressing his
concern on how a order, a federal court order, could effect what the statute said,
and he was looking at the statute and what the statute said. And he wanted
somebody to explain to him why we had authority to deviate from the statute, and
he gave everybody some number of days to put together some information and
provide it to him. That's my best recollection of what happened.

P: That was the conflict between this 1984 administrative regulation, which said
overseas ballots can be either postmarked or signed and dated no later than the


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date of the federal election, and the issue was, which order had precedence?
This federal administrative regulation or state law?

C: Correct. And I think that Judge Smith, from my impression, was leaning toward
that state law governed and wanted to understand how this federal order could
affect that. I believe that what happened later was that information was provided
to the judge as he requested and that was the end of my involvement in that
particular case, because then I moved on to some appellate cases and some
briefs that I was working on.

P: Do you have any sense of the actual recounting of the military ballots? As you
know, in several counties, they went back and counted some military ballots that
had not been counted before, and the New York Times in a very lengthy article
argues that a large number of these votes which were counted were in fact
flawed, that they had either been mailed inside the United States or in one case
one had been faxed in or they were after November 17, leave alone November 7.
Some of them didn't have witness signatures. What knowledge did you have
about the Secretary of State's involvement with the military ballots?

C: I'm not really knowledgeable about that issue at all or what the accusations were
concerning the validity of any ballots. Somebody else may have been working
on that, I don't know, but I wasn't.

P: Just as a point of interest, I know from talking with election supervisors that the
election supervisor of Alachua County would not have accepted an overseas
military ballot which was accepted in Okaloosa County. So therefore, some of
these are determined by differing standards. Is that not a violation of the
Fourteenth Amendment?

C: Looks like the U.S. Supreme Court has kind of established that we need to have
some uniform standards while we're doing recounts.

P: Even military ballots.

C: If you're going to try to glean somebody's intent based on the fact that they didn't
follow instructions and vote correctly, then you better have the same method of
determining that throughout the state.

P: I thought it was very interesting because we have Gore in the beginning saying,
count every vote, and now all of a sudden he's saying, whoa.









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C: But he didn't ask to count every vote because he only went to four counties. If
you're going to ask to count every vote, I would think you would ask statewide
because then you truly are, and you also would ask to count every vote, not just
under-votes, and I think for strategy reasons they chose not to ask for the over-
votes to be counted. I was just amazed by that, because I felt right from the get-
go they were going to have equal-protection problems with the method by which
the recounts were being asked for, and I had conversations with Debbie Kearney
like that first week and I said, and we both agreed that this was going to go up to
a higher court because there's equal-protection violations all over the place, and
she and I both thought that the 11th Circuit Court of Appeals was going to make a
ruling on equal protection grounds, that they would declare the manner in which
the Florida recounts were going forward to be unconstitutional. And, as you
know, that decision came down just minutes before the U.S. Supreme Court case
came down and they in fact did not do that, but we believed that they were going
to.

P: In fact that 8-4 decision by the 11th Circuit didn't mention the Fourteenth
Amendment at all.

C: No, but we really thought it would be decided on those grounds and we said that
early on, before the equal-protection issue was really even brought up in any of
these cases. We just didn't think that the way the recounts were being done
selectively and with varying standards could be upheld.

P: When Barry Richard [attorney for George W. Bush in 2000 election] made the
first appeal, the very first case to stop the recounts, he included that in his initial
brief, in addition to violation of 3 U.S. 5 where the legislature has to decide the
election. So you from the beginning figured the Supreme Court would


C: Well, we thought it was going to be the 11th Circuit, because that federal case
was pending that was on appeal to the 11th Circuit Court of Appeals and we just
believed and talked about the fact that we thought it would be decided there on
equal-protection grounds, and our belief was bolstered when the 11th Circuit
asked for information, kind of like a public-records request in a sense, and our
office started putting together a packet of information to provide to them, and the
types of the things that were being asked for led us to believe that they were
leaning toward decided on equal-protection grounds.

P: Which is interesting, because that's generally a conservative court.


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C: Yeah. And so we did believe that, and I was watching every day for that 11th
Circuit Case to come down, because I truly thought that that's what was going to
happen.

P: What about the activities in Seminole and Martin counties? Were you involved in
that at all?

C: In the activities there, no.

P: In the legal issues?

C: Only in helping to prepare for the litigation, because the Secretary was a
defendant again in those suits and the Steel Hector firm were making
appearances there and I was working with them to prepare for these trials.

P: Did you agree with the final decisions by Judge Lewis and Nikki Clark [judge,
Leon County Circuit Court] in both of these cases, where they stated that you
couldn't disenfranchise all the voters, because the issue had been with the
application for an absentee ballot?

C: Yeah, I did. I agreed with their decision. I think they made the right decision. I
think it would have disenfranchised a lot of voters to throw out all of those votes.
That was, to me, an unreasonable request to ask to have all those votes thrown
out. I think they did the right thing, both of them did.

P: Do you think it was, as Judge Lewis indicated, an error in judgment for Sandra
Goard [supervisor of elections, Seminole County] to allow the Republicans to
come into her office and put in these ID numbers, and in Martin County they took
the request out of the office.

C: I can't pass judgment on that.

P: Would it be a violation of election law?

C: I don't know the answer to that off the top of my head, I don't know.

P: Let's talk about the Florida Supreme Court. The 21st of November, they're going
to intervene with this 7-0 vote, and they're going to extend the certification
deadline to November 26. When you heard that, what was your reaction?


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C: I was shocked. I really was shocked when I read the opinion and saw that they
had actually picked a date that I knew would appear arbitrary. I immediately
figured out why they picked that day, but I didn't know that everybody would pick
up on it and I knew how arbitrary it would seem. I believe that they picked that
day because it equaled the number of days that the recount stopped.

P: That's correct.

C: But as soon as I saw that day, I knew what they were doing. But I thought you
can't do that, that's wrong, you just can't do that. I disagreed with their opinion,
but they are the Florida Supreme Court.

P: But you thought in this case they were making law rather than interpreting
statutes?

C: Yes, I did.

P: It's very interesting also that on the initial remand from the Florida Supreme
Court, they did not explain this November 26 date, and the point you make is
absolutely correct. I ask a lot of attorneys, why did they pick November 26?
People said, well, I don't know, Judge Burton said, it just came out of nowhere,
but it didn't.

C: No, it was exactly the same number of days that the recount in Palm Beach was
shut down. I saw that immediately and knew why they did that. Maybe I picked
up on that because I was in Palm Beach County and I was so keenly tuned in to
the number of days that had gone by.

P: Also, they make a statement that is a little bit difficult to understand. The
deadline is Sunday, November 26 at 5:00 pm if you're open, or Monday morning
if you're not. Why did she take the votes at 5:00 rather than waiting until Monday
morning?

C: I probably can't get into specific legal advice that we may have given Secretary
Harris on specific decisions that were made, but I can say that I think she did the
right thing in doing that.

P: If I may, Mac Stipanovich said, if the Supreme Court said that she had to use her
discretion, they in fact allowed her in their legal opinion to make that decision.

C: They did give her the option.


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P: They did. Therefore he said, I don't see what the problem is. But politically it
becomes bad, because, as you know, Palm Beach County appealed for two
more hours...

C: Except they weren't ready in two more hours and we all know that. They weren't.

P: So her reaction to that was 5:00 pm is 5:00 pm.

C: Right. And the order did say Sunday at 5:00 pm. They were that specific and
that precise. For whatever reason they chose, they did give her that deadline,
though. What if she had not used that deadline and she had extended it because
by imposing the deadline it would have benefitted Gore and what if she had
chosen to extend it? Then she would have been criticized for that, and she
wasn't following an order. No matter what, they were going to find criticism, if
she followed the deadline or didn't, they were going to criticize her.

P: But you can see from a public relations point of view they said, well, look, she's
never open on Sunday anyway, why couldn't she just wait until Monday morning
and then the Palm Beach votes would be in.

C: We were working around the clock everyday, Saturdays and Sundays included,
and I believe even the U.S. Supreme Court was. Everybody was working
everyday to try to get this done. So I don't think that you can read anything into
the fact that the office was open on Sunday. In fact, if it hadn't been open on
Sunday, it might have appeared as though we didn't open on Sunday to cause
another day's delay in certifying. We were not going to delay anything.
P: The way Mac put it, we were adhering to the Florida Supreme Court's decision.
They said 5:00 pm Sunday, November 26, and that's what we did.

C: I think your question was more to why were you open on Sunday, because if we
hadn't been open on Sunday, that Sunday 5:00 pm deadline would not have
applied.

P: The next decision from the Florida Supreme Court is obviously more
controversial, that's the 4-3 vote that's going to overturn Judge Sauls. Now
they're in the contest, and so they appeal the contest to Judge Sauls, he
obviously turns them down, they appeal to the Florida Supreme Court, the vote is
4-3. What was your reaction to that decision?


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C: At that point, I wasn't surprised after having read the opinion before. I think
Judge Sauls' order was extremely well written and was correct. In fact, I had a
conversation with Judge Sauls, after the election was over and all of the appeals
were over, I was at a Tallahassee Bar Association meeting and he was there,
and we talked about his order and he said that the brief filed by the Secretary of
State's office was very helpful to him, the trial briefs that we filed, and so I
thought that was a nice thing for him to say that the work that we had done was
helpful to him in writing his order. I think his order was very well-written and
should have been upheld.

P: As a matter of fact, I had a talk with Joe Klock as well, he said, and Barry Richard
too, that in many cases his decision specifically used legal points that they had
brought up. Obviously, the Democrats want to proceed as rapidly as possible, so
they appeal to the Florida Supreme Court. The thing that's interesting about this
4-3 decision is they allow, or order, Harris to include in the certification total 215
Palm Beach County votes, 168 Miami Dade, but the problem in Palm Beach is
that there are two totals, there's 176 and there's 215. Was there ever any clear
indication as to what the actual total was and how did they get two different
totals?

C: I don't know how they did that, and in fact, to my knowledge, they never did
submit, even after they did their recount that they said would be done in two
hours and weeks later still wasn't done, they never did give accurate numbers, so
I don't know how.

P: As I understand, even when they got the votes in, there was still a partial count.

C: I see what you're talking about.

P: They sent those in, I don't know why, to meet the 5:00 deadline, but it was a
partial [count], it was not...

C: No, it wasn't even that.

P: Missed that too.

C: You couldn't even glean from the data that they sent, if it was a partial, what
numbers to use. There was no way to take what they submitted and come up
with a number to say here, this is what we've gotten done as of now. So even
what they sent as of the deadline was not usable.


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P: Why would they do that?

C: I believe they were just rushing and hurrying and were not able to get their
calculations done and they sent what they had and the calculations were
impossible to use to come up with a number. It was just not possible. Even
weeks later, I kept asking, did they ever send in their numbers? No. It was even
weeks later, they still hadn't sent the numbers and Clay would check with them
and they weren't ready yet. It wasn't a matter of hours and they would be done.
It was a problem with them trying to calculate what the recount total was.

P: Did they ever send in the final?

C: To my knowledge, I never saw the total or heard of there being one. They may
have because, as you know, I left. January 31 was my last day. As of that point
in time, I don't believe they had ever turned on it.

P: Also strange a little bit here, for me at least, was the fact that, and as you know in
Nassau County, there were fifty-one additional votes for Gore on the recount, but
what they submitted for the certification was the original machine count, and part
of the Gore appeal was to allow those fifty-one votes and the Supreme Court
denied that.

C: I agree with denying that. I remember that issue and, in that instance, the
supervisor of elections was certain that the first count was more accurate and
wanted to use those numbers as opposed to the other ones. You need to use
the one that's the most accurate and I think there had been an error in the
second count or something that they wanted to disregard.

P: It's okay for the canvassing board to make that decision, correct?

C: I think what he was saying, it's not okay for them to say that somebody's vote...
P: I mean to choose the total.

C: What he was saying was, we made a mistake when we did the recount, he was
basically saying, we goofed, we made a mistake, and we don't want to turn in a
mistake. That's basically what they were saying because they had made a
mistake.

P: The canvassing board has the authority to do that, is that correct?


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C: I believe they have the authority to send the numbers in, and then the state
canvassing board's authority is basically to count those and add them up. The
state canvassing board never reaches down and directs the county canvassing
board on what numbers to send, it's totally up to them. Obviously they have to
follow the law when they tally them too, but there's no state direction to the
counties on what to send.

P: Why do you think the Florida Supreme Court just asked for the count of under-
votes?

C: I really don't know why.

P: Was it a time issue?

C: That would be one explanation for it, which again brings me back to my point
earlier, which was that if the court had allowed the recounts to not go forward
during the protest period, there would have been more time during the contest
period to do them. I think at the tail end, everybody could see that that strict
deadline of certifying the election was important, because then it would have
triggered an opportunity to do a more thorough recount of all those, instead of
having to limit it to some because of time constraints.

P: Did you see December 12 as a strict standard for having all the votes counted?
This is the safe harbor provision.

C: It's so hard for me to remember now. If I recall correctly, we saw that as a hard
and fast date, but I think that's been questioned after the fact. I think at the time
it wasn't being questioned, but after the fact, it has been.

P: Abner Green and some of the other legal experts I've read say that this is in fact
optional for states. That you can use the safe harbor, but it's not a federal
requirement.

C: Right, but if you recall in one of the Florida Supreme Court opinions, they in fact
mentioned that the legislature had expressed their intent to take advantage of
that safe harbor, and once that's been done and you have expressed your intent
to take advantage of the safe harbor, then I believe Congress has to defer to that
state's expression of intent. If I recall correctly, it was in one of their opinions that
they stated that.


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P: It's interesting to note that, in the beginning, David Boies [attorney for Al Gore in
2000 election] said he thought it was a strict date. Then when it got to the United
States Supreme Court he said, well, how about December 18 and changed his
mind on that. My understanding is that the entire legislature would have to do
that where, in fact, it was merely the Florida House that, I think, voted 68-31 to
seat the Bush electors, and that the [Florida] Senate never voted, although I'm
quite sure if it had come to that they would have and they would have voted in
favor since the vote was on party lines. Talk about your experience before the
United States Supreme Court where Joe Klock represents Katherine Harris.

C: I went to both of the oral arguments where Mr. Klock represented the secretary
and it was an amazing experience, in fact, this whole ordeal was an amazing
experience that I'm really glad I was able to participate in. The courtroom was
packed, it was amazing just to be there, to watch it happen, to watch the justices'
facial expressions and gestures when they were questioning the attorneys, and
the interaction among themselves was amazing to watch.

P: They're pretty tough, aren't they?

C: Yeah. I was really impressed with Sandra Day O'Connor's questions. She really
got right to the heart of the issues in a very impressive way. Go back and read
her questions, and I haven't done it for awhile, but they really did get to the heart
of it. So I was very impressed with her. It was just really great to be a part of
watching them interact with each other and the body language and who's looking
at who. They're not signaling blatantly, but you can pick up on nuances and it
was just great to be in that.

P: Some people would argue this is one of the most significant Supreme Court
decisions in the history of the court, if not the most. The only time they've ever
decided a presidential election.

C: Right. It was amazing. I was sitting in the room on one of them, I guess on the
second argument where Joe misstated the names of a couple of the justices and
the first time he did it, the room was very quiet.

P: The bad news was he identified Stevens as Justice Brennan.
C: That's when everybody went ohhh. You could just hear this kind of slow quiet
rumble going across the room, which is just really unheard of at the U.S.
Supreme Court. People don't make noise in there, but it was just this
instantaneous reaction from the crowd.


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P: Then he misidentified Justice Souter, I think called him Justice Breyer.

C: Right. Of course, and then Scalia introduced himself. That was too funny, and
everybody actually laughed in the courtroom.

P: I heard there was a big roar.

C: There was a laughter, I mean, you just don't hear that. It was just amazing to be
there, and I laughed out loud. It was great to see Scalia introduce himself to Joe
Klock like that.

P: He didn't have, I don't think, more than ten or fifteen minutes. What was the
essence of his argument?

C: I think he really focused on the fact that there was a rule in place, there were
standards in place and it was this. That there were instructions for voting and if
you followed the instructions, your vote was properly counted by the machines,
and to, after the fact, create a new standard that's haphazard all over the State of
Florida and that changes among counties and within counties depending on the
results was creating a circus-like atmosphere that clearly was not in compliance
with the standards that we all live by in the Constitution, which are that
everybody's vote should be given equal weight and if you're going to recount in
one county and not another, the people in the county that's not being recounted
should have something to say about that and there's a problem with that. You
can't handpick which votes are more important than others.

P: So the essence was more about the fact that some counties had not been
recounted then just the standard, because I know Justice Breyer asked him
specifically what would be or what should be the standard and Joe told me he
sort of finessed that question.

C: Yeah, he did, but I guess I knew what Joe was thinking, because we had talked
about this during the oral argument practice sessions with Joe before he went in
there.

P: So he knew that was going to be a possible question.

C: Oh yeah. You know how, when you practice for oral arguments, you have your
lawyers be justices and you pepper them with questions and we did that with Joe
before we went in there. He knew that was coming, he knew that was coming.
But it's true, there was a standard and the standard was that there were


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instructions to follow that weren't followed. He wasn't real bold with giving that
answer, but he did make it clear that you can't have the votes in one county be
more important than the votes in another county.

P: But there is the standard intent of the voter.

C: Yes.

P: And Boies and others are going to argue that if you have a system which has
been in existence all these years, in other words, you've always had sixty-seven
counties who have different standards, and if you carry this to logical conclusion,
you're going to end up in the United States with everybody having the same
voting machines and everybody having the same standards.

C: Yeah.

P: And the Court in their 5-4 decision is going to rule the Fourteenth Amendment.
You've already indicated you expected that, but for those who have looked at the
Rehnquist court, Fourteenth Amendment was not usually high on their decision-
making. Why do you think in this particular case it became such an important
issue?

C: I think because it was so transparent and obvious that certain counties were
handpicked for political or strategy reasons that gave legitimate complaints to
others whose votes weren't being gone over quite so thoroughly. I think it was
just so blatant that you would handpick counties that are heavily persuaded in
one party or the other for the purpose of saying, we're going to count these votes
over here more than once, but in the counties that don't have as many
Democrats, we're not going to count those votes more than once, or more than
twice, or more than three times. When you do that, I think you've really raised
the equal-protection issue because it was so blatant.

P: Boies argued the reasonable-man standard, that a reasonable man can look at
issues in a death sentence in Georgia with identical facts might be different from
a death sentence in Massachusetts, and that it's up to the states to make these
decisions, not the federal courts.

C: When the decisions that a state makes affects the constitutional rights of its
citizens, then the U.S. Supreme Court does have a role to play.
P: They had done so three previous times, but mainly on civil rights issues. Were
you surprised at the 5-4 decision or would you view it as a 7-2 decision?


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C: I wasn't surprised by that. It was hard to guess, sitting there waiting for the
opinion to come, but we had all talked about the possibility of a 5-4 and who we
thought would be on which side and I wasn't surprised by that, and I wasn't
surprised by their decision either.

P: It would seem clear even from the remand that it was pretty strongly 5-4 in that
case.

C: Yeah.

P: Did you see, as some legal experts do, that a 7-2 vote is significant because
seven justices found problems with these different standards?

C: I don't know.

P: What about Justice Breyers' dissent? He said, there's still time, that we can send
the case back to the Florida Supreme Court, they can set a standard, we can
count all the votes.

C: There really wasn't time to do that and the Florida Supreme Court had limited the
recount to just a subset of them. I don't think there was time to do it. Maybe if
they had asked from the get-go for a contest and asked for a recount of the entire
state the day after the election was certified, if it had been certified when the
statute says it should be, they might have had time for all of that. But that was a
risk that they chose not to take.

P: In this case, it was per curiam and they said applied just to this 5-4 U.S. Supreme
Court decision, that it was not to set a precedent. Do you see that from now on
any election where there are differing standards will be appealed in the courts?

C: I don't know, that's hard to say. I'd have to go back and study that opinion again.
One interesting thing was that during this election I think elections-law experts
kind of came out of the woodwork. Beforehand, very few of us really knew a
whole lot about what the elections code was, said, or the nuances in it and we all
learned together really quickly. When it happens again, and most certainly
election issues will come up again, the same thing is going to happen. You don't
have full-time elections-law experts, not very many of them, because it just
doesn't happen often enough to keep you in work.


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P: You can't make a living in election law. I don't need to tell you what Alan
Dershowitz [lawyer; professor; author] thought of the decision, he didn't like it
very much, but he also said that that made the Rehnquist court an activist right-
wing Republican court, and that this was in fact a political, not a legal decision.

C: It doesn't surprise me that he said that.

P: Obviously you would not agree with that assessment.

C: No I don't.

P: Judge Richard Posner, who's a conservative judge, says the decision was a
pragmatic one, but not a legal one, and probably saved the nation from a looming
political and constitutional crisis. What would your reaction be to that?

C: I haven't read that opinion in awhile, so it's difficult to react to people's
assessment of the opinion. I think that it was probably pragmatic and legal,
probably both just off the top of my head without having freshly read the opinion.

P: Let me ask you about the Election Reform Act of 2001. Did you all have much
input into that? Of course by this time you've already left, but I just wondered if
you knew that Katherine Harris had a lot of input in that decision.

C: Yeah, I was gone.

P: Which got rid of the punch-card machines.

C: Which was probably a mistake. The biggest problem with any election is
educating the voters on how to use the equipment, obviously we learned that in
the 2000 election. The one ballot that everybody in the country now understood
how to use correctly are the punch-card ballots, and everybody now knows that
you punch all the way through and make sure the chad's not hanging. If the
issue was voter error, and it clearly was the voters not following instructions, why
take away the one ballot that they now know how to use correctly?

P: You know in subsequent elections they've had problems with touchscreens.

C: They have problems with any type of ballot that you can come up with. The key
is to educate people on how to use it. I know for a fact on the opti-screen cards
where you bubble in the answer, how many times somebody would put an X on
it, or circle it, or bubble in two. They would bubble in the name of their candidate,


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then they would go down and bubble in "write-in" and write it in, and now it's an
over-vote because they wrote in the name of the person they voted for, but
you've got now two votes. The key is educating people on how to use the
system and everybody now knows how to use punch-cards, so I was a little
puzzled at the demand to quit using it.

P: The elections supervisors say that the precinct-based optical scan is really the
best, because in the case you just cited, that would be rejected and the person
would have the opportunity to vote again. I was just curious why they didn't, I
know because of money, the legislature didn't mandate one type of machine
statewide. Another thing they decided was the provisional ballot, do you think
that's a good idea?

C: I wasn't involved at all in the rewrite of the elections code, so I'm not even sure
what the details of the provisional ballots say. I was already gone by then and I
don't know the details of it.

P: How would you assess the treatment of you and Secretary Harris by the print
media and by television? Were they fair? Accurate?

C: I guess you kind of have to separate, because I didn't have much media
attention, and now I got some attention in some of these books that I don't think
treated my role accurately, and I think in Jake Tapper's book in particular unfairly,
and Jeffrey Toobin's book, he either got the impression of my role wrong or the
impression that he wrote was a better way of writing it to sell his book. I don't
know what his motivation was, but he got it wrong, so I would have to say that's
unfair, in a sense, but not to be unexpected. I don't know that anybody else was
treated better or worse. I think that they had the same inaccuracies and for a lot
of people it wasn't singled out as to me. With Katherine, she was a statewide
official that was kind of thrown into the national spotlight and she was often
criticized for simply doing her job, which was to follow the elections law and do
certain things by certain deadlines, regardless of who it benefitted. She would
have been criticized no matter what by one side or the other for whatever
decision she was going to make. So I think the media was somewhat harsh on
her in that sense.

P: Certainly this Cruella Deville and all of that was over the top.

C: Yeah, and the makeup criticisms were uncalled for. You shouldn't do that, it
shouldn't matter.


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P: How do you think this affected her both individually and politically?

C: I think that she's the same person now that she was then personally. She's a
very strong person and very smart, intelligent and determined. She has integrity,
which is why I was proud to work for her. Politically, now she's running for
Congress and I don't think this is going to hurt her one bit, although I haven't
talked to her running for election, but from what I read in the paper she doesn't
seem to be taking anything for granted and she's out there fund-raising and
making sure that she doesn't view herself as a shoo-in for that position and that
she's going to fight for it. I think that it may have helped her, but I don't think
she's going to assume that and take that for granted.

P: In terms of fund-raising, I think it certainly helped her because now she has a
national presence.

C: Sure, that's true.

P: How did all of this impact you, both physically and psychologically?

C: Physically, for quite some time it was difficult to be able to sleep and eat. There
just wasn't time in the day to do either. We were exhausted. When it was over,
a lot of us got sick. I think that we were just all holding back and fighting so hard
and our adrenaline was running so high the whole time that, as soon as it ended,
we just kind of all gave in to whatever we were fighting before just out of
exhaustion. I ended up with sciatica, I had to have pain medicines for my back, I
couldn't walk, couldn't sit, and that all happened as soon as the election was
over. That lasted for about six months, I suffered from sciatica, and my doctor
thought it was related to all the sitting that I did during the brief writing and
studying legal issues. So it was definitely related to all the work I did on the
election. Other than that physically, no other problems. I recovered from that.

P: Are you glad to have had the opportunity to participate?

C: I am extremely glad to have been involved in it. It was a once-in-a-lifetime
experience that I'm really glad and thankful that I was in the position I was in, to
be able to work on those and to be as involved as I was. It was an amazing
experience.

P: As it was a part of history.


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C: It is a part of history and to have been there and watched it unfold firsthand. To
be in the office when the flowers are pouring in and there's no room to put
anymore. Just to be there when the tough decisions are being made on what
does a statute mean and when do we certify and what are the standards going to
be. Just to be a part of that decision making team, it was great. I wouldn't trade
it for anything, it was just a great experience. I'm glad that I was there.

P: Are there any stories or anecdotes that you can recall that might of interest?

C: You're heard the one about the nursing home, the delivering of the flowers?

P: No.

C: Katherine didn't want all the flowers. We were inundated with flowers at the
office. We had a reception room that was just absolutely full of vases of flowers
that came in from all over the country for Katherine. On one particular Friday,
and this became regular after that, the staff would help the secretary gather up
these flowers and deliver them to local nursing homes so they wouldn't be
wasted, because it would be a weekend or something or more were just piling up
and more were coming in, and we didn't want to through them away. So
Katherine actually helped do this, and I wasn't with her, but she did tell the story.
She and another person went to a nursing home and were delivering these
flowers and she was personally taking flowers to ladies in the nursing home and
delivering them. This one lady was on the phone when she came in and
Katherine delivered the flowers. She left and was delivering more flowers and
Katherine was leaving, the secretary was leaving, and one of the nurses came
and ran and got her. She was on the phone with her son, the son had called the
nurse's station to go check on his mother, because she thought Katherine was in
her room delivering flowers. So it was quite funny in that she actually was. But
the son was having the nurse check on his mother. I thought that was a cute
story. She really was doing that.

P: Any others like that? As a point of interest, were you aware of any threats
against Katherine Harris?

C: Not specifics, but just in general, yeah. But I didn't get involved in the specifics of
that. One other funny story, and I don't know if you're going to talk with Debbie
Kearney or not, when we went to the U.S. Supreme Court for the last oral
argument, she got really sick. She had to go to a doctor while she was there in
D.C. and the doctor told her she would not be able to fly back to Tallahassee
because it had gotten into her ears and she was infected and she couldn't fly. So


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I think she got on a train from D.C. to Jacksonville and then she was going to rent
a car in Jacksonville and drive home to Tallahassee. She was so tired, she was
exhausted, and she was in a sleeper car and she tried to stay awake as long as
she could because she wanted to sleep the whole night so she did, she just
conked out because she had been up so many hours. She got up the next
morning to go get some breakfast and found out that there had been a fire in her
car and she slept through the whole thing. Everybody had been evacuated and
they were putting towels down.

[End of side B3]

P: Any other thing that we haven't talked covered or haven't talked about that you
would like to discuss?

C: I don't think so. I can't think of anything off the top of my head. I have another
interesting story. I have a letter here I got from Lebanon. Somebody from
Lebanon wrote to me after watching my interview on CNN.

P: What's the gist of the letter?

C: He would like to exchange letters and visit me if I didn't have any objections.

P: That's another element here, because Tallahassee was inundated with Japanese
television, BBC, literally the entire world was watching what was going on here
and it must have been sort of extraordinary to be in the middle of this fish bowl.

C: It was. When I was in Palm Beach, I have some friends that live in California,
and they happened to be on vacation in Burma and were on a ship on the day of
the election. So the next day or two, I think it was, after the election, when the
landed and they got on shore, the first thing they wanted to know was who won
the election, so when the boat pulled up they asked some guy who was standing
there who spoke broken English and he said, he would go check and he ran off
and he came back and he said, it's a tie. They said, no, no, you don't
understand, go ask somebody else, Bush or Gore, Bush or Gore? So he ran off
again and he came back and he said, it's undecided. They said, never mind,
never mind, he doesn't understand, that can't be. So they got to their hotel,
turned on the T.V. and I guess CNN was on and I was on T.V. Here I am from
Florida and they're from California, so what a small world we live in and they're in
Burma, so that's how they found out was from watching television in Burma.


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P: It's amazing how it changes people. Carol Roberts said she went somewhere
like India and was recognized in another country and Judge Burton said for
months he couldn't go anywhere that people did not recognize him and have
something to say to him one way or the other. Do you think the anger and
animosity has died down on the part of the Democrats?

C: I doubt that. Time does take care of things like and emotions do tend to calm
down over time, from my perspective, but I don't see a lot of them changing their
view on what happened. Although, if you look at the polls now, it seems that
everybody's pretty happy with the president we have and pretty happy with the
job that President Bush is doing. I think that a large majority of us are really glad
he's there. So all in all, it was a good result.
P: On that positive note, let's end the interview. Thank you very much.


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