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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
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Miguel De Grandy
Summary of Interview (August 21, 2002)
De Grandy speaks of his legal background and running for office in which he lost the election
(for Florida legislature) by one vote. He describes how this impacted his view of the way the
Miami-Dade County Canvassing Board works "and the types of maneuvers that the Democrats
might do" in recounts. He recounts how he understood before the 2000 election what a "hanging
chad" was and how Miami-Dade County Canvassing Board was "making up the rules as they
were going along" in the 2000 election. Chairman David Leahy referred to the "De Grandy
Standard" in discussing a hanging chad. He describes his first post-election involvement on
November 8 or 9 by watching the automatic recount at the Miami-Dade Elections Center.
De Grandy remarks about representing the Republican Party in court (ordered by Republican
Party to make sure it is adequately represented before the canvassing board). He says he "ended
up doing the lead on the canvassing board while Bobby [co-counsel Martinez] was doing the
appeals. First the motions for stay, the injunction, and then the appeals." He talks about
appealing the reversal of the canvassing board's decision to continue the count (board had at first
voted against a hand count). He feels that Democrats "were successful appealing to emotion
rather than using facts." He describes how there wasn't evidence to suggest machine error but
instead it was voter error. He suggests Democrats were confusing voter error with machine
error. He talks about how the canvassing board changed its standards so that "it becomes so
subjective that it's just not fair."
De Grandy evaluates the Miami-Dade County Canvassing Board members. He details the
tension-filled interaction in the "re-presentation" hearing. He talks about Myriam Lehr changing
her mind to vote for a recount due to public pressure--rather than following the law. He explains
the process to finally get Judge Tobin to hear the case (to stop the Miami-Dade recount or
continue it). Judge Tobin ruled against the Republicans who wanted the recount to stop. He
perceives that Tobin's view was that he was "not going to stop an ongoing process" (vote
counting) but later on there might be "ample time to decide whether those votes can be counted
or not." He comments that Tobin probably thought the issue would later be decided by a higher
De Grandy talks about the relationship he had with the main Republican litigators and interacting
with Barry Richard or Ben Ginsberg. He describes the Republican strategy as trying "to reverse
or halt the decision to recount all the ballots." He says his role was to do "multiple objections"
during the Miami-Dade recount "to preserve evidence" ("we need to get everything recorded
because this thing has to be appealed"). He adds that to counteract the issue of Republican
tactics to delay the recount, "We were building, in our strategy, really was not to delay the
election, it was to build an evidentiary base that we could overturn the decision of the canvassing
board ultimately to count those additional ballots." He discusses Leahy's procedure to do the
recount. He then brings up the Florida Supreme Court ruling on the deadline of November 26.
This deadline date put a restriction on the board's ability to finish counting. He counteracts the
Democrats' argument that more teams could have been added to finish the count.
De Gandy speaks about confronting board member Lawrence King over King's earlier comment
about the illegality of counting just the under-votes. He views the recount as discriminatory
based on the precincts the board chooses. He expresses the opinion that the canvassing board's
move up to the nineteenth floor to do the recount violated the Sunshine Law "because they go
into a closed proceeding with controlled access." He talks about the protesters and recounts the
incident about Joe Geller taking a sample ballot. A few hours later the board votes to stop the
recount claiming that there is not enough time to finish by November 26. He disputes the fact
that the protesters were congressional staffers and sent by the Republican Party to impede the
vote counting. He says they "had come down to provide resources as observers for the counting
De Grandy speaks highly of the lawyers on both sides but adds that the Democrats' mistake was
choosing the lead lawyer out of New York (Boies) rather than selecting a Florida lawyer familiar
with Florida law. Experience and knowledge of Florida law "made a difference." He feels that
it makes sense for Bush to have chosen some of these participating lawyers for key positions in
his administration because "those folks would be precisely the type of folks that the [Bush]
administration would be looking at" for highly placed governmental posts. He agrees with the
notion that the Republicans were better organized, more efficient, and more aggressive. He adds
that the "Democrats seemed to be in disarray" and "everybody [Bush team member] had their
scope of responsibility." He feels that the Democratic strategy should have been to go to the
contest earlier rather than linger in the protest phase. "Gore lost a lot of credibility because of
those flip flops" (that is, saying to count all the votes, then changing it to count only the under-
votes, then eliminating some of the military votes).
De Grandy believes that if there had been a full recount that "we [Bush] would have still won."
He disagrees with the idea that the majority of Floridians who went to the polls voted for Gore.
He cites the problems with the Dexter Douglass approach about strategy tiers. He returns to the
issue of the canvassing board being intimidated and therefore stopping the recount. He claims,
"Clearly, they [the board members] were secure where they were." He says that the protesters
were people who "were exercising a right" and that they "never committed an assault on
anybody, they never broke the law." He thinks that the board members were too influenced by
the media. He states that the famous politicians came to Florida for "FM--free media and
De Grandy brings up the subject of Alex Panellas (Democratic Miami mayor) and his non-role in
this process. He also assesses Katherine Harris's role, saying "she was very much maligned"
and "her decisions were right on point." He adds, "The bottom line is she was following the
law." He states that "she may have been perceived and even acted in a partisan manner. But at
all times, she did it within the law." He feels that Jim Baker was a better spokesperson than
Warren Christopher. He cites two reasons why Judge Middlebrooks's decision was wrong (his
ruling was that this was a state matter, not a federal matter).
De Grandy refers to the Florida Supreme Court 7-0 decision to continue the recount and giving
the November 26 date of certification as "a sad day for our Supreme Court because that case was
not ruled upon based on the law." He adds that "when you go beyond the law, even for good
intentions, you start breaking down our system of government." He says that Gore going into
the contest phase before Judge Sauls was "grasping straws," and by this time "they [Gore team]
had missed too much precious time." He recounts that by the time the Florida Supreme Court
rules 4-3 to continue the recount he was "numb at that point." He goes over the Republican
argument again that "you haven't denied anybody their right to vote. If they [voters] didn't
follow the rules, and they didn't vote correctly, there's a factor of voter responsibility that has to
be accounted for."
De Grandy criticizes the Florida Supreme Court again by saying "a lot of what the Supreme
Court did seemed illogical and again, that's what happens when you travel from the clear
mandates of the law into the gray area of trying to do equity." He thinks that the legislature was
saying that "if the Supreme Court oversteps the bounds of the law, we will not recognize this
decision, we will seat the electors." He agrees with Tom Feeney's decision to seat the Bush
electors because "that was the province of the legislature." He states that this seating did not set
a dangerous precedent because it was "the job of the legislature." He was not surprised by the
U.S. Supreme Court taking the case because "it [the case] needed to be resolved," and that Bush
v. Gore was "a very well reasoned opinion." He again states that the problem was the counties
were not following their own standards, but they "were changing the rules" during the recount
and that was the problem. He postulates that the U.S. Supreme Court had every right to take on
this case because it was a federal election. He describes the process as "very positive" and "a
unique opportunity to participate in a once-in-a-lifetime event."
Interviewee: Miguel De Grandy
Interviewer: Julian Pleasants
Date: August 21, 2002
P: This is Julian Pleasants. I am in Miami, Florida, talking with Miguel De Grandy,
August 21, 2002. If you would, explain your legal background and your specialty.
D: Yes. I started practicing law in 1981 as an assistant state attorney, a prosecutor
here in Miami-Dade County working for Janet Reno at the time who was the state
attorney. In 1983, I went into private practice specializing in litigation. I had my
own firm and then a firm with some partners until 1988. Then I ran the first time
for the state legislature. That was an interesting race in that it was decided by
one vote, and I was one vote short. [In] 1989, I ran again for the legislature and
was elected and retired in 1994. Throughout that time I was also a lawyer doing
litigation matters. In 1994, I came back to Miami as a partner in the law firm of
Greenberg-Traurig heading their governmental administrative law department in
South Florida and was doing that until the election in 2000.
P: I wanted to ask you a little bit about that election of one vote, I believe you asked
for a recount of the votes. In that case the canvassing board did comply.
P: And when the recount came out, it was exactly the same or one vote difference?
D: No, there were actually three different counts and that was before the
amendments to the statute were passed that governed the 2000 election. At that
time, there was really no stated methodology for how you would address
recounts unlike the statute that existed in 2000 and at that time, they also
counted absentee ballots the day after the election. So the night of the election
when they did the unofficial count of all the votes in precincts I had won the
election by nine votes. The next day they count the absentee ballots and declare
it a tie election. Under state law, on a tie election you have to do an automatic
machine count. They did that automatic machine count and in that count I lose a
vote and my opponent gains a vote. So I appealed to the canvassing board and I
said look, I can understand that you might have found an extra vote for my
opponent, but you can't say that a vote that I had, disappeared and until we find
that vote, I'm not going to give up. Now if you give me the hand count, I agree to
abide by the results and not appeal it in court. So they gave me a hand count, it
was a two to one vote. Mr. Leahy was the one that voted against the hand count.
P: Well, let me point out, that's pretty consistent for him then, isn't it?
D: Yes. He's always voted against a hand count. And they ultimately did a hand
count and what they said is that there were two cards with hanging chads. The
first time, according to them, it worked in my favor: didn't record his, and
recorded mine. The second time it worked the opposite. So even though they
acknowledged that they found the vote that they had taken away from me, my
opponent still had an extra vote.
P: Did that in any way influence your thinking when you were involved in the Dade
County Canvassing Board recount?
D: It helped me understand very quickly where we were and the types of maneuvers
that the Democrats might do, and what options were available for counts.
P: You were ahead of the game because at least you knew what a hanging chad
P: Since you had that personal experience.
D: Right. Also, in that recount, as it was stated later by Mr. Leahy, they had set a
standard as to how may points of a chad had to be loose in order for them to
consider it a vote.
P: And what did they decide on that case?
D: Part of what we argued is that they violated that standard because the standard
was you had to have at least two loose. So that the thing swings openly...
P: [A] swinging door.
D: Right. And the canvassing board here was making up the rules as they were
going along looking at dimples, looking at one-corners, so that was part of what
came out. Leahy said it publicly at one of the canvassing board meetings, that
the "De Grandy Standard" was the two points loose and part of our objections
and appeals was that they were not following their own standards.
P: What were you doing and what was your reaction to the vote?
D: Actually the election day, I wasn't very involved. I have always been active as a
Republican, but I wasn't very involved at all. I was more a spectator. I
remember actually falling asleep around midnight watching election results
coming in on TV and when I woke up in the morning, the television was still on, I
think it was maybe CNN, and the world had changed. There was suddenly a tie
election, nobody understood what was going on, there was no clarity -
something that I didn't expect, certainly on election day.
P: When were you first contacted by the Republican Party after the election was
D: I think within a day or two to supervise or to help supervise the initial activity that
was going on in the Department of Elections since I had had experience in
counting ballots and recounts, etc. I remember being over there in the counting
room on the eighteenth floor [of the Miami-Dade Elections Center] watching the
employees put the ballots through the machine again and watching everything
P: This is the automatic one-half of one percent recount?
D: Right, that was the automatic. They allowed, I think, a couple of partisans per
side inside the room, inside the machine counting room, and the rest would be
outside and the press would be outside.
P: When were you contacted and by whom, to appear in court representing the
Republican party before the Dade Canvassing Board?
D: I talked to several attorneys including Sue Cobb [attorney for George W. Bush in
2000 election on the legal team that contested recounts in Miami-Dade; US
ambassador to Jamaica 2001-present], who I remember called specifically and
asked for help, and also Mary Ellen Miller [Miami-Dade County Republican party
chairperson], who was chairman at that time for the local Republican party,
asked me to serve as counsel, at that time for the local Republican party.
P: Did you talk to Ken Mehlman [White House Political Director] at all? Did he
D: I remember him being down here, I remember the name, I remember dealing
with him, but I don't think he was one of the first. He may have been the one that
engaged Bobby Martinez [Miami attorney], but I came in through Sue Cobb and
through Mary Ellen Miller. As a matter of fact, thinking about it, I think Mary Ellen
and I spoke first and that's what led me to go over to the first canvassing, and
that's where I saw Sue Cobb, who I dealt with on several occasions.
P: So you and Bobby Martinez were sort of co-counsels on this?
D: Yeah, Bobby used to be a Greenberg-Traurig lawyer and I was at the time with
Greenberg-Traurig. We had known each other for many years and so we both
came in. Bobby had more of the active, day to day litigation practice. I hadn't
done litigation in some years. I've concentrated more on governmental law. So I
came in with the political perspective, and he came in with the litigation side.
P: Now what were you instructed to do and by whom once you started the legal
D: This thing kept mushrooming and evolving. At the time it was just make sure that
we're properly represented before the Canvassing Board.
P: And you and Martinez, in effect, split the duties as the case proceeded?
D: Yes. As it evolved, then there came a point where Bobby said basically I've had
enough of the canvassing board, I'll stick to what I know, which is courts and
judges. I ended up doing the lead on the canvassing board during the last days
that we interacted with the canvassing board while Bobby was doing the appeals.
First the motions for stay, the injunction, and then the appeals.
P: Let me ask you about that. That motion for a stay was to Judge Esquiroz
[Margarita Esquiroz -judge, Miami-Dade County Circuit Court]?
P: Who determined that appeal should be made?
D: We all did, as a team.
P: And she, the judge, turned that down. Why?
D: My recollection is she denied the emergency relief, and said you're free to go to a
regular judge and file for injunctive and declaratory relief on whatever you want,
but I'm not going to, at this time, stop what is ongoing. It's very fluid. I recognize
that there is proceedings about to happen, or happening already I think, in front
of the Supreme Court. But I'm not going to stop anything that's ongoing right
P: And did you agree with that decision?
D: No, we disagreed. That's jumping forward. At that point, we were appealing the
reversal of the canvassing board. They had reversed themselves. Initially, they
had voted for no hand count.
P: Kendall Coffey [attorney for Al Gore in 2000 election] and Steve Zack [attorney
for Al Gore in 2000 election] I believe were the Democratic lawyers, and you said
earlier you sort of had anticipated what they were going to do. How would you
evaluate their strategy?
D: I think that they did the best they could with the facts they had. The bottom line
is the law did not call for the relief that they were asking for. They got in more
politically through Judge King [Lawrence King -judge, Miami-Dade County;
member, Miami-Dade County canvassing board] than legally. But they did the
best that they could, with the facts that they had. Steve and I go way back.
Steve actually argued the redistricting case that I sued on ten years before to
create minority/majority seats in Florida, so I knew him well. Kendall, I had
known him from social circles and the bar circuit that did not know him well. But
Steve, I had a good grasp on. He had cross-examined me once. I had seen him
work as a lawyer so I was prepared for him.
P: One of the things you brought up over and over again that the Democrats were
really appealing to emotion as opposed to using facts. Were they successful in
D: Yes, they were successful in turning the decision of the canvassing board. The
canvassing board, after they did the automatic machine count, by motion of the
Democrats granted the sample count.
P: Joe Geller [chairman, Miami-Dade County Democratic Party] who's head of the
Democratic Party, made a formal request...
D: For the sample count of three precincts. It's the methodology that's allowed by
P: And let me be clear, they can choose any three precincts they want, right?
D: They can under the statute, which we pointed out that the ones that they picked
were grossly unfair. The fact that the law allowed it didn't mean you had to be a
pig about it. They picked the three highest Gore precincts and we thought that it
ended up kind of backfiring on them because the only thing they could find, I
think it was five or six extra votes for Gore. So our argument was look, if that's
the best you can do in the best precincts you picked, there is no error in
tabulation here to speak of. Those are issues of hanging chads and things that
we're used to. Our position was the statute dealt with errors in tabulation. And
there was no evidence as a result of that sample count that the machines were
reading the wrong numbers, that the machines were coming up with the wrong
summary counts or anything that would indicate an error in tabulation as
opposed to the normal hanging chads and human error, the voter himself, not
tabulation error of the machines.
P: Judge Posner [Judge, 7th Circuit, U.S. Court of Appeals; author of Breaking the
Deadlock: The 2000 Election, the Constitution and the Courts] said that one of
the problems was that the Democrats were confusing voter error with machine
P: And what they were arguing is that if the human eye looks at it, you can tell
according to state law, the intent of the voter, because sometimes on over votes
they might circle Bush and write in Bush. Now the machine won't pick that up,
but if you look at it, you can determine that that would be "a legal vote" for
George Bush. Did you agree with that reasoning?
D: No. We had actually an incredibly interesting ballot when we were doing. There
was a ballot, and I mentioned it in one of the presentations, that had both chads
punched out and then it had an X on one and a check mark on the other. So in
one of my arguments I made, I said well, how are you going to interpret that?
You can say that check means that that's the one or you could say that X marks
the spot. How are you going to interpret it? You have to be "Carnac the Great,"
put it up to your head and come out with a result, and that's not the way we do
elections. That was the whole problem in trying to divine intent. There was no
standard which is ultimately what the decision was of the U.S. Supreme Court.
Here in Dade County, they had a standard which was, Leahy actually calls it the
"De Grandy Standard," [where a ballot had] two points totally loose [later known
as a swinging chad]. Even within recounts, from the sample recount to the
subsequent recounts, they changed their methodology. They were now doing
dimpled chads and one corner chads. It becomes so subjective that it's just not
fair. It's better to just let whatever the machine did, because we know the
machine can't be biased, be the final result.
P: Talk a little bit about the Dade County canvassing board. For the first time I
guess, there were two judges, because the county commissioners were either
involved in an election or in somebody else's election.
D: Yes. Gwen Margolis [Miami-Dade County commissioner, 1994-present; Florida
state senator, 1980-1994; president of Florida senate, 1990-1991; Florida state
representative, 1974-1980] who was the chairman of the county commission at
that time, recused herself, I don't remember as a result of what election because
she was not running, but she was either involved in a campaign or had actively
endorsed/participated in a campaign and felt that it would not be correct for her to
sit during that election. So Judge Lehr [Myriam Lehr- judge, Miami-Dade
County; member, Miami-Dade County canvassing board] was appointed to stand
in her stead.
P: Then the third member, of course, is the supervisor of elections, David Leahy.
P: Now how did you assess this board when you started your deliberations? Did
you assume that maybe one judge would be more favorable to the Democrats?
D: Oh yeah, yeah. The swing-vote was always Judge Lehr. Judge King, in my
humble opinion, was clearly biased, and clearly leaning in a partisan way towards
Democrats. We knew that Leahy, Leahy is the consummate a-political animal.
He won't side with Republicans, Democrats, he is really a true professional.
P: And in fact, legally he was bi-partisan. He was, at the time, registered neither
Democrat nor Republican.
D: Yeah, Independent or no party affiliation. But we knew Leahy from past
experience. In the same way you studied judicial precedence to see what a
judge is going to do, we were pretty comfortable that Leahy would vote for the
manual count of the three sample precincts, because that's what the law allowed,
and that was pretty much automatic, and would vote against any subsequent
recounts. At the time we didn't know if that was going to work in our favor or not,
because as a result of whatever happened in those three manual counts, we may
have wanted to consider a recount. But the conventional thinking was, no let's
just argue for what the machines did and leave it as is because anything else is
going to get too muddy. So we knew coming in that we could pretty much count
on Leahy's vote based on his past decisions to vote no to an expanded hand
count. And we knew pretty much off the bat, that King was just a surrogate
Democrat sitting on that board. So Myriam Lehr was, at all times, frankly the
person we were arguing to.
P: Now on the first appeal, the Canvassing Board voted two to one against a
recount and Myriam Lehr voted no.
D: Right. That was after the sample count. After the sample three precincts.
P: Then the Democrats asked the Board to reconsider.
D: That was a very unusual process because we had argued our case before them,
and basically what we argued after the sample three precinct count was no
evidence of error in tabulation. The fact that an election is close is of no
consequence in the law. These things happen, and are supposed to happen
when elections are close, but there's no evidence of any malfunction, etc. That's
what the statute looks for, you've satisfied the process that the statute
commanded, it's time for us to go home. And King was the one that, at that time,
voted for an expanded recount.
D: But they were willing to hear a re-presentation, and that is a little unusual.
P: Yeah and even more, the way it was done. Because it frankly looked like Mr.
Geller and Mr. King had a conversation off the record. Because we weren't
there. Bobby Martinez shows up that day to the Canvassing Board because he
is basically monitoring something for a friend, and the E. Clay Shaw recount with
Elaine Bloom. Nothing was publically noticed dealing with the presidential
campaign, they were there to do the recount on Shaw. He's sitting in the back of
the room watching the proceedings. Once that's concluded, Geller gets up and
says, "I have a motion I want to make, a Motion for Rehearing," etcetera. At
which point Judge King tells Bobby Martinez who's sitting in the back of the
room, "don't leave Mr. Martinez." That is very unusual. Geller argues his case,
Bobby is then asked to respond and when he gets up, Bobby is a guy I look at as
a teddy bear. He's the most gentle, kind, guy you can meet, and he was visibly
upset. I mean because the process just was so blatantly illegal.
P: Plus he had no time to prepare.
D: Exactly. And he's asked to respond, and I think he said something like I'm going
to count to ten before I start. And Judge King just railed into him. Which showed
more bias, in my opinion.
P: He did later apologize for that.
D: Yeah, he did later apologize for it, but it was uncalled for to begin with. He said
something like I don't like the way you're looking at me. Now I remember my
mother telling me that when I was eight years old, you know. That's not what a
judge usually says. But Bobby was at least successful in getting them to give us
time to prepare. Because Geller wanted to have that thing decided right there
and Bobby said I haven't even talked to my client. I don't have a client to
contact. I haven't been noticed. I think King realized that he would commit
serious error if he pressed the Board to make a decision at that point. So he set
the hearing off for two or three days. They all voted that day to hear arguments
two or three days later. To set a hearing as to whether there should be a
P: And so all three voted in favor of a rehearing? During the rehearing, you argued
again that there had been no compelling evidence, nothing had changed. They
had voted against a recount the first time.
D: And we even marked at that point the fact that they were way outside the law. I
remember arguing and saying what we're not going to talk to you about is how
you feel. This is not about how anybody feels. This is about following the law.
And we argued that precisely because it was the most important election in this
country, the presidential election, it was that much more justification to follow
along. You don't bend the law in any case including the most high profile and the
most important election that can occur.
P: In this case, they reversed their vote, and again Judge Lehr was the one who
changed her mind. And now voted in favor of a recount.
P: Why do you think she did this?
D: Public pressure. I remember her saying, and there's a quote in the transcript of
when she changes her vote, she says, "I read the newspapers," I clearly think it's
P: Do you think Judge King had any influence over her?
D: I remember Judge King, the first vote that we won, he voted last. And this time, I
remember, he voted first and made a strong argument. I think he was trying to
browbeat her into changing her vote.
P: The newspaper stories I read indicated that both you and Martinez were stunned
at this decision, it was something you just did not expect.
D: Absolutely. I mean we expected them to follow law.
P: So now what's your strategy?
D: Well, at that point, that's when we got into the court battles. And that's where
Bobby basically says alright, and really we had a shortage of resources. We had
a makeshift office at Greenberg-Traurig. We were bringing in some of our
associates but we were also bringing in other lawyers cause we were
overwhelmed with things that we had to do in such short time. And so at that
point we kind of created two divisions, if you will. Bobby headed the legal
litigation side and I continued with the Canvassing Board. At that point, the
decision was made to try to stay that decision and enjoin that decision. So that's
when we tried going with Esquiroz. We reached her, she was in the [Florida]
Keys at some wedding reception or something like that. We prepared for these
pleadings over the weekend. In two days we had prepared what I thought was
[an] excellent [case]. [We] had it hand delivered to her, in the Keys. We sued the
Canvassing Board, obviously. And we had reached Murray Greenberg and we
[asked if he would] accept service for the Board? He said, "I don't want to touch
this. If you want to serve the Board, serve the Board." So, the Board is served
through its chairman. So, we actually served, we had a process server knocking
on Judge King's door at 11:00 at night, I mean on a Saturday, serving him with
papers. We had a telephonic hearing over that weekend, and Judge Esquiroz
denied the emergency relief, but without prejudice for us to go to court and seek
in a blind file system with a regular judge to seek the relief that we were asking
P: Who did you appeal to at that point?
D: I think we got Judge Tobin.
P: Did he make a ruling?
D: Yeah, he ruled against us.
P: Now this is different from the Republican Party's overall appeal to halt all of the
recounts which went to Judge Middlebrooks, correct?
P: This is completely separate.
D: Right. This was a separate thing where we were saying you know, enjoin this
Canvassing board that has exceeded it's authority. And basically both Judge
Esquiroz and Judge Tobin, from what I remember, I mean I was in the telephonic
hearing and I also went to the court to the argument, to hear the
argument in Judge Tobin's court. Both of them were basically saying, look
ultimately it might be found that what they did is illegal, but we're not going to
stop an ongoing process. We're not going to enjoin it, we're going to let it
happen, and then later on, we'll have ample time to decide whether those votes
can be counted or not.
P: They must have realized that it was eventually going to be decided by a higher
D: I think they were all taking that position, looking at it and saying this is beyond us.
So, we're going to leave status quo. We're not going to touch it, and let some
higher court decide.
P: Did you have any contact with the Bush campaign headquarters? From Bush
lawyers? From Jeb Bush? From anybody in the Republican Party?
D: At that point I had been talking to Barry Richard, who was my partner at
Greenberg-Traurig, I had been talking to Ben Ginsburg who...
P: Ben Ginsburg's sort of the overall, I guess, main litigator for Bush?
D: Eh, he's more the overall coordinator.
P: Coordinator, okay.
D: Barry was the main litigator, at least here in Florida. And Ben was, I think, the
National Coordinator of Legal Resources. Ben and I have known each other,
again, since 1991/1992, the last redistricting [and] developed a very good
relationship. At that time we sat in court together and tried a case. So at that
time I was interacting either with Barry or with Ben Ginsburg.
P: And what was the strategy at that point?
D: The strategy at that point is try to reverse or halt the decision to recount all the
P: Was there a specific charge for you to slow-up the recount? To protest?
D: As I said, I took over completely on the Canvassing board side so I managed the
attorneys and observers that were looking at the recount. We were trying,
actually, to preserve evidence, so we did multiple objections. But part of it, for
example, internally we had strategized and said ok, in terms of standards which
ultimately ended up being the Supreme Court's decision, here we had a two
corner standard. Anything that is below that, that's either one cut corner, or
dimple, etc., we need to object, we need to get the ballot number, we need to get
everything recorded because this thing has to be appealed.
P: And, of course, the Democrats said that you were deliberately delaying and trying
to hold up the counting.
D: No. Our position, if you look back at the transcript itself, our position was we
would object against anything that wasn't a clear vote, period. And if they divined
it to be a clear vote, there were a lot of those that we objected that were two to
one decisions. Where one person said that's not a vote, and the other two said
yeah, that is a vote. So it was counted as a vote. And we were building, in our
strategy, really was not to delay the election, it was to build an evidentiary base
that we could overturn the decision of the Canvassing Board ultimately to count
those additional ballots.
P: Let me talk a little bit about the process. Leahy sets up, as I understand, twenty-
five teams of counters.
P: And the first thing they have to do is separate, because what they're going to do,
as I understand, is just count the under votes, is that correct?
P: At the beginning they were going to count them all, but...
D: Yeah, at first they were going to count them all, and they actually went through
one-third of the precincts. They had...
P: But we're talking what, 650,000 votes? Something like that?
D: Let me backtrack a second. When we get the two to one reversal, we had
argued, the Democrats had argued for expediency, count the under votes, and
we argued that's illegal. The statute says, if you find an error in tabulation, which
we submit you could have not found on the evidence, but if you did, you have to
count all the ballots. And Judge King, and that's something I'm able to get him
back on later on, Judge King says, "In my opinion, I think these guys are actually
right. I think it would be illegal to just count the 10,000 under votes. And so
we're going to proceed to count the whole thing."
Leahy then sets up the counting teams, and they start counting, but they're
counting precincts numerically, which means they're starting in the high non-
Hispanic Democrat areas, the northeast. So, as they're counting, and you're
getting results from these tables, and people are trying to tabulate them, and
everybody had a different count, there was no really official count at any time, but
you're seeing Gore's votes start rising, because, of course, all you're counting is
the high Democrat areas. And we're saying even that, from a perception
perspective is unfair and is tainting the process. Because the news media was
picking up Bush's gaining, excuse me, Gore's gaining votes in the Miami-Dade
count, but the bottom line is you're counting high Democrat precincts. They get
to the point...
P: Let me interrupt you one second, you talk about that, the perceptions. Had Gore
achieved large number of votes or at any time in Dade County, if Gore had gone
ahead in the count, that would have changed everything, would it not?
D: It would have. But, at that point, we were confident that if they did count all the
votes we'd end up in the same place because at that time they had, again,
started with the high Democrat precincts. Not consciously, I mean David Leahy
just did it by numerical. By the highest number of precincts last and the lowest
number of precincts first. And at that point, when they're counting the ballots, we
were confident when they got to the Cuban-American precincts, that the under
votes for Bush would be amazing. And especially since we have a high elderly
population that is probably more prone to error. So if they were going to divine
through dimples, etc., those precincts were going to weigh heavily for Bush. But
during that time, what happens is the Supreme Court rules that there is a
deadline. I think it was Sunday evening or Monday.
P: You're talking about the Florida Supreme Court, right?
D: Right. Sunday evening or Monday at 9:00 am.
P: November 26th. Which actually shortens the time that they anticipated they had to
recount the votes?
P: For some, for Palm Beach, it was probably helpful.
D: Cause they had started way before.
P: But for Dade, it really put a restriction on their ability to count all the votes.
D: Right, and so that's when you get the mass confusion. We go to another hearing
and at that point Bobby is I think somewhere in the 3rd DCA [District Court of
Appeal] or appealing now or case to the Supremes. I [also] handled the hearing
in which they basically have a status hearing and say, "Okay, here's the problem
we're at now. We're not going to meet this deadline."
P: Is that mainly Leahy who was making that argument?
D: I think Leahy was the one that prompted them to convene becausee he could
look at, in terms of resources and manpower, he just couldn't do it [complete the
recount]. And he said, "We might come close to the wire, but my assessment is
we're not going to get it done."
P: Of course, the Democrats said instead of the twenty-five teams, you could have
seventy-five teams. They accused him of dragging his feet.
D: No, I think twenty-five teams was barely manageable. Because you had
observers, a Democrat and Republican observer at each table, and they were
objecting to ballots. And then those ballots would be coming up to the three
judge Canvassing Board and we had counters/observers behind them that were
then objecting to their decisions. There was a stop of resources, if you will, at
[the] three judge Canvassing Board, you could have had a hundred teams out
there, but when all the question ballots come to the board, it's all, it's those three.
And they didn't have the capability to deal with all those objections prior to
P: I don't know of any circumstance before where a Canvassing Board would have
representatives of both parties, and no matter what they came up with, one party
or the other party would protest. And it was a monumentally complex process.
D: And we were, both sides were preserving their record.
P: And yet, in most cases, the Canvassing Board would sit down, on their own,
usually no observers, right? And count, and make the decision as best they
D: Yeah. And they could have observers, because it's a ....
P: Could they have eliminated observers?
D: No, no under the Florida Sunshine Law, that's what led to problems later on, but
in any Canvassing Board has to be, under the Sunshine Law, open to the public.
P: But they can limit the number and who they are, correct?
D: I don't believe so. We argued that they couldn't. And I think we were right, in
retrospect because in a Sunshine Proceeding, what you could limit is who
addresses the Board. Because there's case law that says there's a difference
between a public meeting and a public hearing. Okay, and the law compels you,
if you're a decision making body in Florida, to hold a meeting that is publically
noticed that is available to all the public. That doesn't mean that the public has
the right to participate or speak. But they always have a right to observe. And
that was the problem that occurred later on. But the point where I think the
criticism to Leahy is unfair is, you could have had 100 counting tables, but you
then would have needed four Canvassing Boards to filter through the objections,
and you didn't have that. You only had one Canvassing Board. So he was right,
they could not finish the job by Sunday and deal with all the objections.
P: Go through the process now, the recount starts November 20. Florida Supreme
Court intervenes November 21 and sets the November 26 deadline.
P: Now at this point, Leahy decides to move the counting process up to the
nineteenth floor, is that right?
D: They [Democrats] call for some some sort of status hearing. And we go over
there, and they basically have a discussion. That's when Leahy says, "We can't
get this done in time," so they go back to, "Okay, there are two options. We
either count the under votes or stop counting period." And that's when we made
the argument and we said, "Well number one, you can't count the under votes,"
and I kept, you know, putting in Judge King's face and quoted the transcript and
said, "You said this was illegal." At one point he got testy with me a couple of
times. He said, "Mr. De Grandy, I know what I said." And I said, "Well I'm not
arguing to you, I'm arguing to the other two." And I said, "You can't do that." And
then I said, "And on top of that you're going to compound the error by having fully
counted a third of the precincts which are non-Hispanic, high Democrat. And
you're going to count the votes that you glean from there, plus the under votes,
that would violate the Voting Rights Act of Hispanics."
P: That's when you were saying that would be discriminatory.
D: Right. Because the point was, they had gleaned say a net 200 [votes] or
whatever it was, a net 200 from the one-third of the precincts that they had
counted. Fully counted. Now, those were for the most part, highly Democratic,
non-Hispanic precincts. So if you are going to get those 200 votes plus, then
now for the other two-thirds of the county, count only the under votes, you are, in
effect, creating two different systems. One for Democrat, non-Hispanic precincts,
and one for Republican, highly Hispanic precincts. And I argued that would be a
violation of the Voting Rights Act. Because you're counting the vote in a different
way, and you're choosing here to count everybody's vote and here to count only
a selected group of votes. They say, "No, we're going to try it anyway." We have
to go upstairs to still have the machine cull out the rest of the under votes from
some of the precincts. And...
P: So they were still in the process of doing that.
D: Right. And then, at one point in that hearing, before they decided to go up there,
I make that initial argument and say, "You can't take the results of one-third of
poll count precincts and two-thirds of just under votes in the rest of the precincts.
That's wrong." Murray Greenberg says, "No, no, no, that's not what they're
going to do. What they're going to do is scrap the whole process and start again
and do just the under votes." I turn around and said, "Well that's illegal because
now you have decided that you could identify 200 existing votes and yet you're
not counting them." And I was trying to illustrate this is the problem you get to
when you are...
P: Solely subjective.
D: Yeah, when you try to do a Carnac the Great [Carnac the Magnificent, a role for
comedian Johnny Carson on the Tonight Show]. You have to go back and say
the machine was the best unbiased count that we could do. Maybe not the most
accurate, but the best unbiased count that we could do. And so, at that point,
they kind of ignore it and say, "Well, we're going to try it," and they go off to the
nineteenth floor. At that point, in my opinion, they violate the Sunshine Law.
Because they go into a closed proceeding, with controlled access, they decided
they were going to let one of our partisans from the legal team, and one of the
Democrats, and they only, they had a court reporter, and they had a sound
system inside, but they only allowed the media outside the glass. There was a
big glass wall.
P: But they could hear and see everything that was going on.
D: They could see, right, but they could not really get the gist of what was going on,
and the public could not come in. Because if you look at the configuration of that
floor, there's the front reception area and [you] come in and to your right or to
your left there's two access doors to the rest of the floor. The counting room is
way in the back. And there's desks everywhere and office equipment and
furniture, and you can't have people there as spectators. And there's literally a
four foot corridor that people had to stand [in] to look through the glass. That [is]
a work area, it's never meant to be a public hearing area. So folks, and
understandably so, that were not allowed in, began the protest. And the
interesting thing, the Democrats also tried to paint it as, "Oh, well, Republican
intimidation." Number one, none of those guys were intimidated. You know, they
were in the back there, they were totally safe. But number two, what I've argued
is the press itself was protesting. One of them was threatening, I think it was
from the Washington Post, to have their lawyers fly down, or to hire lawyers
immediately to try to stop this process in a court of law for violation of Sunshine
Law. And these folks did what is basic in our Constitution. They protested in a
legal government decision.
P: Although it did get a little tense, and a little nasty. I know Joe Geller [Chairman,
Miami-Dade Democratic Party] came in, and he wanted to see one of the sample
ballots, and when he got there they accused him of stealing the ballots.
D: That's when I find out because I'm down in the eighteenth floor when we
conclude that hearing that I just explained to you, they decide to go up to the
nineteenth. I assigned one of our lawyers to go up there with them. And I leave
to get back with the legal team and strategize. Things were moving so fast, I
wanted to get a report of, "Okay, where are we in courts? Who's ruled for us?
Who's ruled against us? How do we regroup from this, etc." And we left to one
lawyer's office, I don't remember whose office at the time. And we get, one of
the attorneys gets a call on the cell phone saying, "Joe Geller just got arrested." I
mean, that was mass confusion. And we're like "what?" And the guy is, you
know, trying to tell us what he's hearing on the portable phone, and, "Yeah,
there's a riot forming and this and that," and we go, "Oh, my God, let's go back
there." So we go back, by the time we go back, down in the lobby, there's some
people spreading out, coming out of elevators. I guess at that point, they started
getting them out of the nineteenth floor, and we're trying to get...
P: They, you mean the sheriff's office?
D: Yeah. And we're trying to get bits and pieces of information what's going on, etc.
Some people are telling us they caught Joe Geller stealing a ballot. And
apparently what had happened was that he went and asked for a sample ballot.
[End of side Al]
D: At the time, apparently what had happened is Joe goes up in the middle of this
brewing protest and is in that lobby area asking, or so they recounted the story to
me, a sample ballot. He gets a ballot. Some people see him walk out, and see
him with a ballot in his hand, [they] don't know he got a sample ballot, they think
he's stealing a ballot. And so somebody said, "He's stealing a ballot, get him." I
think there were police officers that detained him momentarily until they cleared
up the whole thing. So there was an hour or so of mass confusion.
At that point, once all that cleared out, and the protesters started clearing from
the nineteenth floor, I decided I'm going to stay down in the eighteenth floor. We
had an attorney in the nineteenth, so I'm going to stay down here no matter what
cause it's too fluid and anything can happen. At that point, ViaFano, the county's
communication director, was coming down to the eighteenth floor saying, "Look,
we're going to have a hearing in half an hour, please both sides try to keep your
folks in control." I started telling all my legal team, "Find everybody that is one of
our observers, tell them to calm down, tell them to come to the eighteenth floor to
sit down," and we waited. ViaFano kept changing the hour, it was like you know,
they're coming down at 11:00, they're [canvassing board] coming down at 11:30,
they're coming down at 12:00. Finally, I think it was like 1:30/2:00 before they
came down are reconvened.
P: At that point, they fairly quickly voted three zero to completely stop the recount.
D: Yeah, they allowed both sides to argue again. And we made our same
argument. And we said, "You know you have compounded the error in such a
way that there's nothing you can do at this point."
P: But you certainly had King in a disadvantageous position because of his earlier
D: Oh, yeah, I kept hammering it every time I spoke. I said, "You're doing now what
you yourself said was illegal, and not authorized by the statute."
P: Although, at this point, they had only to count 10,750 under-votes, correct ?
P: And they decided, Leahy at least, stated we cannot finish by November 26th.
Why do you think he made that statement because, as we later find out, when
the Miami-Dade votes go to Judge Lewis, they count them in one day. And of
course there's no protesters but could those 10,750 under-votes, could they not
have been counted by November 26th?
D: It would have been close with the objections and the scrutiny. Because that
would have taken three times the time. And they still had to cull out. What they
had was, in a third of the precincts that they had fully counted, they had
separated the under-votes, but not in the other two-thirds. So they actually have
to [separate the under votes]. Leahy, even though he voted against me once, I
have all the respect in the world for him. I don't think he ever intended to violate
the Sunshine Law. He just thought it was more convenient to be doing the job up
there while they're supervising the machine at the same time. But the bottom
line is, it was a violation of law.
P: But both Leahy and King said in the hearing that "the circumstances have
dramatically changed." What do you think they meant by that?
D: I think they were talking about the time line. That time is just getting really short
on them. I think they had trouble dealing with our arguments also. Because at
this point, you've now identified votes in one-third of the precincts that you're now
going to discard in order to go and identify other votes in a field of 10,750, you're
compounding the error. The only true solution at that point was to hand count all
the ballots. In other words, the only thing that could have been legally
supportable would have been [to] count all the ballots, and they didn't have time.
So, I think they realized that 10,750 is not going to do it for them, is not what the
statute says, and we may not have time to do them even if we wanted to
because of how this process is.
P: Of course, the Democrats, when the Canvassing Board says, "Things are
radically different this afternoon than they were this morning," were saying this
mob had come in there and had intimidated them into stopping the count. What's
your reaction to that interpretation?
D: I totally disagree with that, and as I told the press at that time, those people were
exercising a basic constitutional right. And they were correct, because the
government was violating the law by having a hearing outside of the Sunshine.
P: One of the criticisms of the group was that these were "paid Republicans," some
of them were congressional staffers, others had been sent down [from
Washington], and that they were deliberately sent to stop the vote count.
D: No, a lot of those folks had come down, but had come down to provide
resources as observers for the counting tables.
P: But they were asked and paid to come, and their meals and transportation and
hotels were paid for.
D: Yeah, and I don't dispute that they did, but they weren't hired and paid to come
here and protest. They were hired and paid to come here and provide resources
as observers. We needed, and a lot of those people were, lawyers, younger
lawyers that didn't have any experience to litigate this type of case. But I had
people, that I was supervising. [at] the counting tables that were our observers
that had law degrees. All of them were very well versed, there were
congressional aides, all sorts of folks that were articulate, resourceful, etc. But
their purpose was to be observers. Now, as a result of the action of the
Canvassing Board, they suddenly had nothing to do. They're excluded from the
process, they had nothing to do. They went up to the nineteenth floor, and they
started a protest.
P: Two interesting statistics, as you know the other day the Miami-Herald
discovered that something like fifty people were involved in the Dade County
activities had been given jobs by President Bush and Bob Zoellick, of course,
probably the most notable of that group. Also, that the Bush team outspent the
Gore team in the recount four to one. Do you think that made a difference in the
D: I don't think the outspending was of any consequence. I mean they had some of
the best lawyers in the country and so did we. We pride ourselves to say after
the results was that we had the best lawyers in the nation, but they were mostly
all from Florida. Their basic mistake is that they picked their lead lawyer out of
New York [David Boise]. And he was someone that had no experience in Florida
law, process, or elections.
P: Whereas Barry Richard [Attorney for George Bush in 2000] was a Florida lawyer.
D: Barry Richard had an incredible amount of experience. And each one of us, if
you look at the lead [lawyers] of the major county recounts, were all Florida-born,
Florida-bred lawyers that had significant governmental experience.
P: With the exception of the military vote. Because then a lot of the Chicago people
were involved in that.
D: Right, and that was the proceeding before Judge, I think it was Smith....
P: Smith, Bubba Smith. [Richard "Bubba" Smith, circuit judge for Leon County,
D: Bubba Smith in Tallahassee. And that, let me tell you, kind of showed precisely
our point. You brought in lawyers, I don't think our lawyers did well in that area. I
don't think they made a good presentation in that area.
P: They finally gave it up.
D: Yeah. I think our success was, we had, like them, we had the best and the
brightest, but ours were Florida trained, theirs were not. And I think that made a
P: And what about the jobs?
D: The jobs, you know, it amazes me how partisans on both sides, Republicans and
Democrats, make issues of things that they do also. Now it stands to reason that
the folks to begin with, that participated in the recount process as lawyers, were
folks that were good Republicans that were in the loop in terms of partisan
politics, etc. And it stands to reason that those folks would be precisely the type
of folks that the [Bush] Administration would be looking at for key positions.
P: Plus if Gore had won, he would have rewarded the people who supported him,
D: And I don't think it was a reward.
P: So Ben Kuehne and all these other...
D: Could have been anywhere they wanted. But I don't think it was a reward for
participating in the recount and providing services, I think those people would
have probably gotten positions in government anyway because they were
integral parts of the Republican machine to begin with. That's why they ended
up providing resources for the recount. So it's kind of, I guess you can analogize
it as the chicken and the egg. The reason that we were all lawyers in the recount
effort is because we were part of the Republican establishment, if you will, to
begin with. So whether or not there would have been a recount, all those folks
would have probably gotten positions. I mean, I have been offered several
positions, I'm just not interested at this point in going back into government. I did
public service as a prosecutor, as a legislator, and now I have four kids to send
through college. Even a job that is a higher level job is not going to pay me what
I need to support four kids, my wife, and my mother.
P: Almost everybody I've talked to, Democrats and Republicans, say that the
Republicans were better organized, more efficient, and more aggressive. And in
the end, they won the recount.
D: I think, to a great degree, that is right. And that's something we joke around in
terms of partisan politics, that we as Republicans can do twice as good with half
the resources because we are business-oriented. But I think that is right. We
were better organized to begin with. The Democrats seemed to be in disarray.
You had for example, Kendall Coffey [Attorney for Al Gore in 2000 election], who
was not at the last hearing, where I argued, and they reversed the position in our
favor. Kendall Coffey was flying to do Tallahassee work and coming back, and
Boies was doing work all over. We organized, and to tell you the truth, it may
have had something to do with the fact that many of us were in the same firm, in
Greenberg-Traurig. Because we're used to dealing in a multi-office
representation with a structure. And so we knew Barry [Richard] is the head up
there, everybody has got their responsibilities, and the county stays on the
ground. So Bobby Martinez and I never moved from Dade County. The folks in
Broward stayed in Broward, and everybody had their scope of responsibility. We
would flow information up, either through Barry or through Ben Ginsberg.
P: And talking with the Democrats, Mitch Berger and Ben Keuhne, Kendall Coffey,
all of those were sort of operating independently, but they didn't have it
D: Yeah, they had different firms, and they had serious ego problems within them as
to who was going to do what. We had at one point mobilized, I think, over fifty
lawyers from Greenberg-Traurig dealing exclusively with this issue, including our
lawyers in Atlanta in the Eleventh Circuit Court of Appeals. So we had bases in
all the right places we needed to have and, even though we were bringing in
folks from other firms, you know there were people like Bob Martinez that used to
be our partner, so worked well with us, and the other folks, we were able to
integrate them well into our structure. And the other thing that I think is we
realized early on that this was a long haul. I think the other mistake of the
Democrat team was that they were living it day-to-day. And after the third/ fourth
day, there were enough of us here that had Florida electoral experience, that we
looked at this and said, "This is going to the Supreme Court, whether it's the
Florida or the US or both, this is not going to be decided on a haphazard basis,
let's create a network, let's create a system," and we did. And we functioned
P: In fact, Dexter Douglass argued very early on that Gore should go directly to the
contest. In the long term, many lawyers concluded, you can't win the protest.
They needed to go to contest and probably the best thing they could have done
was count all the votes. Would you agree with that?
D: Yes. And they realized that it was too little, too late. And that, I think, was part of
what I was telling you before, the lack of Florida experience. You know, you had
folks in there that were very intelligent lawyers on behalf of the Democrats, but
they lacked the knowledge of the turf that they were operating.
P: What about Gore's argument that, "We want to count all the votes," and then he
only wants to count under votes, or he wants to eliminate some of the military
votes? Do you think that argument undermined his credibility?
D: Oh yeah, I think Gore lost a lot of credibility because of those flip flops. I mean,
Bush's position was the only one he could take, and it was always consistent,
which is don't count anything. So, he was in a more favorable position in that he
was consistent in where he was, Gore kept flip flopping back and forth and, I
think, lost a lot of credibility.
P: Several people who have written about, this argue that was Gore's ultimate
failure. That he saw this in many ways as a political contest and that he wanted
to make sure he didn't offend certain groups. And that what he should have
looked at, as Mac Stipanovich [Republican strategist; Chief of Staff for Florida
Governor Bob Martinez, 1987] said, "It was a game to the death, and we are
taking no prisoners. It's a legal fight and we're going to win this fight. And if you
worry about various constituencies, you've lost what your focus should be."
D: Absolutely. You have to realize when you're in a contest, that it's winner take all,
and you have to fight it by those set of rules, not by different set of rules that
apply to politics. I've had that problem at times with clients, where one disputes
with a governmental agency and I'll say, "Okay, now you need to sue them and
you need to do this, this, and this." Well, but I don't want to offend them
because I'm building a road for them somewhere else." I say, "Okay, well that is
your decision as a client, but it's not the right decision in this dispute."
P: In fact, probably had Gore listened to the Florida lawyers, like Douglass [Dexter
Douglas, attorney for Al Gore in 2000 election; chairman, Florida] who said,
"Let's go to the contest early," [it] might have made a difference.
D: You know, I think in my heart of hearts, and I don't think that all the recounts in
the world proven otherwise, I think in my heart of hearts [that] if you would have
had a full recount, we would have still won. And all the post-mortems that have
been done had proved, at best, inconclusive.
P: Would you agree, somebody told me, I think it was Bob Poe who's head of the
Democratic Party, who said, "I'm not sure who would have won the final count,
but I can assure myself that a majority of Floridians went to the polls to vote for
D: I don't know that that is correct. And I think what happened with Gore, at that
time, my thinking, and still to a great degree it is, that he wanted two bites of
the apple. He got too greedy. He wanted to (A.) get the recount of the high
Democrat counties, and, then, if he didn't win then, there, then he was going to
say, find religion and say, "Let's count all of Florida." And that, that was just too
slick for him. I think in the end, that's what buried him. Because the problem
with the Dexter Douglass approach, I think probably the Gore advisors were
telling him is, "Okay, you count all of Florida and you lose, you're done. You
have no second tier of strategy. No plan B. Whereas, if you count these
counties, and you lose, you still have a plan B which is go to the entire state."
P: Tim Nickens who's a political reporter for the St. Petersburg Times who was here
in Miami-Dade observing. He said, "I don't think there was any question that the
Canvassing Board was intimidated. When you have people like that banging on
the door right outside, it's a huge crowd. The pressure got too much for them, I
don't think they understood who those people were. That the public was fed up,
but it wasn't the public, it was staffers and hard core Republican supporters."
What would be your comment on his interpretation?
D: I think, number one, he characterizes the people that were there correctly. They
were really Republican partisans, but two, I don't think the Canvassing Board
was intimidated. Clearly, they were secure where they were. They had no issue,
any personal harm to themselves. I think all three of them have pretty much
clearly stated that ad nauseam. My response again was, these people were
exercising a right. They never committed an assault on anybody, they never
broke the law. On the contrary, they were protesting governments breaching
their own laws, and they were correct in their protest. Because, in retrospect, I
don't think anybody can seriously argue that they were not violating the Sunshine
Law in that closed proceeding.
P: Judge Myriam Lehr said that she had been watching television and was upset by
all the chads. You know all judges watch television, they read the newspapers.
How important was all the media coverage of the events on their thinking?
D: I think it played too much of a role. And it's unfortunate because a judge is
supposed to rule on the law. And I think it played too much of a role in the
judges' minds. Including the state Supreme Court.
P: How about the visitors who came? There was Mark Racicot [Montana governor,
1993-2001] and Bob Dole [Robert Dole, U.S. Senator from Kansas, 1969-1996]
and [John Forbes] Kerry [U.S. Senator from Massachusetts, 1985- present] from
the Democrats. They came down and observed. What was the purpose of that?
D: In my opinion, for them it was all FM, free media and grandstanding.
P: But obviously the Republican party sent them down to present their case, and
one of the issues comes up is several people come out and say, "It's chaos in
there. They're eating chads, there are chads all over the floor." The Democrats
would come out and say, "No, it's very smooth and very logical and very
organized." Do you think that affected how people reacted to what was going
D: I don't know that, I mean one thing is what the public bought and the other one is
how that colored the perception of the Canvassing Board, the decision makers. I
think everybody understood that there was absolute chaos, and I think most of
the judges and members of the Canvassing Board in those counties were
Democrats. And in their mind, I think they were influenced somewhat, especially
when Democrats started saying, "We're gonna go after all the individuals that did
this and that, and we're going to register voters." And both parties started chest
pounding. And the bottom line is some of these judges looked at the fact that
they have to be reelected and that their base is mainly a Democrat base. And I
think that that colored their thinking somewhat.
P: But in the end, the Canvassing Board did the right thing in your view.
D: Yeah, in the end they came back full circle to the first vote they had taken, which
was the correct vote.
P: Let me ask you a political question, if I may. What role did Alex Panellas [Miami
Mayor] have in all this? Did you hear anything from him at all? The Democrats
obviously hoped he would intervene and get the Canvassing Board to continue
the count. And apparently he did not, although he apparently promised
Representative Ford, of Tennessee, that he would write a letter to that end.
D: There were all sorts of rumors flying as to what Alex was or was not doing. I
think he lost on both sides because again he's an anomaly in this community.
He's a Cuban-American Democrat. And the majority of us are overwhelmingly
Republican. He's never been tested in a partisan race. He's always run for non-
partisan seats. And so he was in a position where I'm sure the Democratic Party
was exerting pressure but on the other side, he knew that he would incur the
wrath of the Cuban-American community if he did anything to derail Bush's
P: Let me ask your assessment of Katherine Harris. How would you evaluate her
performance and her decisions during this period of time?
D: I think she was very much maligned and what really bothered me about it is that
the press actually upbraided her for her personal appearance, etc. I think that
was totally classless. I think her decisions were right on point. I don't think any
competent elections official would have ruled otherwise.
P: Somebody told me that had a Democrat been in that position, if she's partisan as
a Republican, a Democrat would have been partisan, too.
D: Yeah, well we've seen that right now with Bob Butterworth [Florida Attorney
General, 1986-present] during the reapportionment cycle. He has made
obviously partisan decisions. He, for example, asked the state Supreme Court to
invalidate the state reapportionment. First time in the history of the state that an
Attorney General does that, and we had to, as counsel for the House, defend and
beat him in front of his own Supreme Court. He went and sued in Washington
[D.C.] to deny us the right to go through pre-clearance with the Justice
Department. I mean these are things that are unprecedented. And so people
look at Katherine Harris and say, "Well she was partisan," they don't look at the
fact that, as you say, if another partisan is in that position, they're going to do
everything they can to help their party. But within what Katherine was doing, the
bottom line is she was following the law.
P: The only thing that might have been a problem was when Mac Stipanovich said
that he had advised her to do one thing differently. The Supreme Court gave her
the option of taking certification either at 5:00 on Sunday or regular office hours
on Monday. She chose 5:00 Sunday. And as you know, Palm Beach County
was two hours late. And that had certainly the appearance of favoritism.
Although I should point out, the Court clearly gave her that option.
D: Yeah, and I think that, again, she lived with the cards she was dealt with. I
thought it was highly unusual for the Supreme Court to say 5:00 Sunday or 9:00
a.m. Monday. You know, just say one or the other. And of course, if that is the
case, then, as I said, she may have been perceived and even acted in a partisan
manner. But at all times, she did it within the law. And the bottom line is that is a
position that is run as a partisan position and just like when I was a legislator, I
would try to pass bills or defeat bills based on my particular ideology because the
bottom line is I was elected by people after I told them what my ideology was.
So, I assume that if you elected me, you elected me to support the positions that
I talked to you about. And I don't see anything wrong with that as long as you do
it within the law.
P: Well, Judge Lewis in both of his decisions clearly pointed out that it was up to
her. It was up to her discretion. She had to choose, but she had the authority as
an officer of the state within the law to make these decisions.
P: What about the leadership of the spokesmen for both sides, and I guess if you
look at Jim Baker [U.S. Secretary of State, 1989-1992] vs. Warren Christopher
[U.S. Secretary of State, 1993-1997], people have argued that Jim Baker was a
major force in presenting the Republican point of view and that he had a dramatic
impact on the outcome.
D: I think he, definitely as the anointed spokesperson, did much better than Warren
Christopher did. Warren Christopher, in his first appearance, the first time he
went national, actually did very well in my opinion. But then from then on, his
credibility started to dive down. While Baker's stayed...
P: [William] Daley [Campaign manager for Al Gore in 2000] was gone part of the
time, but Baker was here most of the time. I want to get your comment on Judge
Middlebrooks decision. You know there was the appeal by Bush for an injunction
to halt the recount. And this is what Middlebrooks argued: It was a state matter,
rather than a federal matter, that what is critical is the intent of the voter, which is
what Florida law says. And that, while they may have different voting standards
in each county, that is the way it's always been, and it is "reasonable and non-
discriminatory on its face" because the Canvassing Board can then have the
discretion to make the final decision. Therefore he says that he would not halt
the recount. What's your reaction to that?
D: I think that the decision was wrong. For two reasons. One, ultimately the
Supreme Court voted, you can't have different standards, county by county. But
the other thing that I think was not either well articulated to him, or he just didn't
pick up, was that Canvassing Boards were changing their own standards,
internally. As I talked to you earlier on in the interview, during the first sample
recount of three precincts, they were, Dade County was using the two- point
standard. The chad had to be totally swinging, two points loose. When they
went into the full recount, they changed to one point, to dimples. At that point,
you have arbitrary and subjective decision making. So I think he was wrong, and
even if he was correct in saying, "Well each county has their own standards, but
they're uniformly applied," that was factually wrong, because they weren't being
uniformly applied, even within the county.
P: Well, Palm Beach County is the best example of that. They changed several
times. And of course, Broward had a different standard from Palm Beach and a
different standard from Dade. But isn't that the way it's always been? There's
always been a different standard.
D: And that's the way it always used to be, but it used to be that they did have
uniform standards within each county and they followed it. They didn't change it
in the middle of an election.
P: What about the Supreme Court, Florida Supreme Court decision, seven zero, to
continue the recount, and then they came up with this November 26th date to
extend the date for certification, do you know where that came from?
D: No. No, and I think in retrospect it was a sad day for our Supreme Court
because that case was not ruled upon based on the law. The law was pretty
clearly written, and they ruled on what they believed to be equitable principles as
opposed to following the law. And that's when, in my opinion, we kind of saw it in
a little bit of chaos that occurred during that time, that's when in my opinion that
the structure of government begins to break down, because even if you're well
meaning, obviously our Supreme Court is very partisan, but I think they were well
meaning within their partisanship in saying, "Let's count, let's get it all out, let's
get it all done," but if that's not what the law says, then when you go beyond the
law, even for good intentions, you start breaking down our system of
P: And so you mean, essentially, that November 7 date is the legal date of
certification. And to change that date, is to change the law. They argued, of
course, they were merely interpreting the law. This was a statutory issue. And
that, they said, since there was in fact an option for a recount, certainly the law
did not intend to prevent that but limiting the time to count all these votes.
D: And they were wrong, in my opinion.
P: I also thought it was interesting, they wanted, and if I can quote this, "Palm
Beach and Broward County can continue the hand recount, but they denied the
appeal from Gore to continue the hand count recount in Dade." Does that seem
inconsistent to you?
D: Say it again.
P: Yes, in the seven zero vote they said Palm Beach and Broward Counties,
continue recounting. But they didn't include Dade County. And when the Gore
partisans made a specific appeal to the Florida Supreme Court to continue that
recount in Dade, they turned it down.
D: Well, they turned it down, they didn't deny it. I think they just didn't take the case,
and I think what the interpretation was, and, again, now I'm kind of trying to probe
into my memory, the interpretation that everyone got out of that is they decided
not to hear the case anymore because they perceived their order to apply it to
any county. It's just that the appeals that got to them were from these two
counties, but their order was applicable state wide. Because I remember Volusia
also came in under the count.
P: Yeah, but why would they specify those two counties?
D: Because those were the two that were before them at that point.
P: Okay, becausee that's where the appeals come from.
P: Okay. It came directly from Palm Beach, but it applied statewide.
D: That's the interpretation that most people were giving it.
P: Once you've had that decision, were you surprised at all that Gore went to the
contest and appealed that before Judge Sauls?
D: No, I think he was at that point grasping straws. And as you said, it may have
been the strategy that should have been employed at the front end, but, at that
point, they had missed too much precious time.
P: And what did you think of Judge Sauls's decision?
D: To tell you the truth, I don't remember anymore how I felt about it.
P: He didn't really count the votes, you remember the day all the votes were taken
up, and that they were talking about counting all the votes. In fact, the
Democrats wanted them to count the under votes, but the Republicans argued
the same argument you did, if you're going to count them, you've got to count
them all. And Sauls said that the Canvassing Board had exercised their
discretion, there was no problem with any of the activities, there was no fraud,
there was nothing that would in any way show that the votes had been incorrectly
tabulated, therefore he couldn't disturb it. It then goes to the Florida Supreme
Court, and here I think a lot of people were surprised at the four three vote.
What was your reaction to that?
D: I think I was numb at that point.
P: Do you think that there was a clear basis for that four-three decision? They keep
referring in the Florida Supreme Court of the intent of the voter, to deny
anybody's right to vote is to deny the democratic process.
D: I'd say that our argument all along was, you haven't denied anybody their right to
vote. If they didn't follow the rules, and they didn't vote correctly, there's a factor
of voter responsibility that has to be accounted for. And that was our, one of our
main arguments. You know it's a different case when you're stopped and told
you can't vote. There's an irregularity on your voter registration card which is not
your fault, and they tell you you're not in the right precinct. Those are issues of
potential denial of the right to vote. But if you're allowed in, and you're given the
instructions in writing, and you can't figure it out and you vote the wrong way,
that's not a denial of the right to vote. That's your stupidity.
P: I thought it was interesting to note that ninety-six percent of the people in Palm
Beach County voted correctly.
D: Where was that statistic from?
P: Palm Beach, where I've talked to the election supervisor. Only four percent, of
course it was an important four percent, but....
D: In a close election, it's always important.
P: Yeah, but if ninety-six percent vote correctly, one would assume they didn't have
any problem with the butterfly ballot, right?
P: So if they don't vote correctly, that vote is not a legal vote.
D: Exactly. There's a factor of responsibility.
P: At the four three Florida Supreme Court, I was interested in some of the
specifics of this decision. They said number one, to certify 215 Palm Beach
County votes, 168 Miami-Dade counts, those were the ones they had gotten from
the first one-third count, and then to hand tabulate 9,000 additional Miami-Dade
ballots. What were those?
D: That was the additional under votes. In the one-third of precincts they had done
1,750 of the under counts.
P: I see. So in effect they're ordering them to finish counting the under votes.
P: And then strangely enough, I don't know, you might remember Nassau County,
they had taken a machine vote and a hand count, and they went back to the
machine vote, which denied Gore fifty-one votes.
P: And the Supreme Court wouldn't give him those fifty-one, although they were
derived from a hand count. Does that seem illogical to you?
D: Yeah, a lot of what the Supreme Court did seemed illogical and again, that's
what happens when you travel from the clear mandates of the law into the gray
area of trying to do equity.
P: What was your reaction to the four three split? And obviously the Chief Justice
of the Florida Supreme Court, Justice Charlie Wells, was not very happy with that
decision, and said it would create a constitutional crisis. I thought for a quote,
Democratic court, four three vote was pretty close.
D: Yeah, I think some of those judges started looking at what they had done in the
first instance and said "No, we've got to go back to looking at the law and
interpreting the law. And not trying to do equity." You can't look at it in a
vacuum, you have to look at it in what the legislature was doing. The legislature,
at that point, was saying, "If the Supreme Court oversteps the bounds of the law,
we will not recognize this decision, we will seat the electors." And the Supreme
Court has to be mindful, even though we have three independent branches of
government, that the legislature was holding the purse strings.
P: That's very good as a dual response because in one case somebody argued that
Justice Wells was sort of repairing his fences and saying, "look, we're not as
radical as you think we are." But the other case may be he was facing the issue
of what if the Florida Supreme Court continues the recount? And you have the
legislature seating Bush electors and the courts seating Gore electors, then you
do have a constitutional crisis.
P: At least it would have to be decided by the United States Supreme Court.
P: Do you agree with the legislature and Tom Feeney when they voted 79 to 41 to
seat the Bush electors?
D: Absolutely. That was the provence of the legislature. And I think in that potential
constitutional crisis the Florida Supreme Court was wrong.
P: But didn't it set a dangerous precedent?
D: No, because I think that is the job of the legislature. That is not the job of the
Supreme Court. And the Supreme Court was not interpreting law, it was creating
law in my opinion.
P: The Florida Supreme Court, right?
D: And was exceeding its authority.
P: Were you surprised that the United States Supreme Court took the case?
D: No. I think ultimately that was were it needed to be resolved.
P: What's your reaction to the Bush v. Gore, U.S. Supreme Court decision?
D: I thought it was a very, for the time that they had, a very well reasoned opinion.
And the bottom line is that, and in all areas of the law, you look at, for example,
when you look at the criminal law, and you look at case law dealing with
temporary detention and stops and stop and frisk the citizens, etc., there is case
law that has struck down arbitrary stops of citizens, profile based stops of
citizens saying basically you have to have some sort of articulable objective
standards when you start dealing with a potential violation of constitutional rights.
And you cannot permit officers of government to have unfeathered discretion
that is not ameliorated by some sort of articulable standards that have to be
P: [David] Boies [Al Gore's lawyer in Bush v. Gore] would argue the reasonable
man standard. If you have death penalty case you put it before the jurors and
they, in Tennessee, might vote differently than they do in Minnesota. And it's the
same thing, you have different voting standards in each state, if you follow the
Supreme Court decision to its conclusion, then there must be one standard for
D: No. They have to have one standard per state. But here, as I said before, even
within counties, they weren't following their own standards and were changing
P: And that was the problem.
P: Did you see this as a seven two vote because seven justices had problems with
the standard? Or a five four vote?
D: Say it again.
P: Yeah, if you look at it, it was a five four vote, but it was per curium and there
was seven of the justices who said that there was a problem with standards. So
did you see that as the relevant issue? That would make it, theoretically at least,
seven two rather than five four?
D: I would have to reread and re-analyze the opinion to give you a fair comment.
P: Were you surprised the key issue was the Fourteenth Amendment? It had not
been mentioned before the Eleventh Circuit Court of Appeals turned it down, and
that's a conservative Republican court?
D: Yeah, I'd have to re-read it. If you want me to give you an analysis on law, it's
been a long time since I read it.
P: Alan Dershowitz and a lot of others criticized that it was a terrible mistake, and,
as you know, at least three of the justices who voted in the negative thought it
was bad law and that it was not anywhere near their province.
D: To deal with state standards.
P: Yeah, they shouldn't have taken the case in the first place because it's state law,
and they're not experts on state law. Did you have any reaction on that at all?
D: No, I mean I think in the end, at the greater visual level that it had to be decided
by the United States Supreme Court. This was a federal election.
P: Justice Stevens said the decision was wholly without merit, and Justice Ginsburg
said that the December 12th deadline was not a standard deadline, it was
flexible. And Judge Breyer said that you could return the case, remand it back to
the Florida Supreme Court, let them take a standard and go ahead and vote
again. You know, have time to count all the votes and then just extend the
deadline. Because it doesn't really count until January 20th.
D: And our issue at that point is then you are allowing a state Supreme Court to
create new law. You're setting the standard after the election. You either have
the standard before the election, and the only real standard in the end that was
objective, if you will, and unbiased was the machine standard.
P: So this applies to 3 US 5, then, which leaves the election in the hands of the
legislature. In other words, to change the authority for carrying out election for
the legislature to the courts violates a United States law, a federal law.
P: How has this experience impacted your life?
D: You know, I think it was very positive in retrospect. There were tough moments
when we were working basically twenty-four seven. Getting about three hours
sleep at night, but it was a unique opportunity to participate in a once in a lifetime
[End of side A2]
You know, I've been blessed in terms of having several opportunities in my life
and my professional career to be involved in very high profile and significant
cases. In 1992, we were successful for the first time in creating African-
American majority seats in Florida. And for the first time in 100 years African-
Americans were elected to Congress. I led the mini-dream team, if you will, of
lawyers that represented the legislature this cycle and we won every one of the
cases filed against us.
P: This is the reapportionment.
D: Yeah, ten years later. I've had the opportunity to do unique cases such as
Rosewood which was the first time in the history of the United States that there
were actual reparation for racial mob violence that occurred in our past. And this
was, certainly, also a once in a lifetime opportunity that you always treasure as a
P: Okay, on that note, we will end the interview. I want to thank you very much for
your time. I appreciate it.
D: Thank you.
P: I'm sorry to rush you at the end there...
[End of the interview.]