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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida
Kendall Coffey obtained undergraduate and law degrees at the University of Florida and
acted in the public and private sectors in public service as a Fifth Circuit clerk and
later as the U.S. Attorney in the Southern District of Florida, and in the private sector
with Greenberg-Traurig and Coffey, Diaz, & O'Naughten, among others, and co-
founded Coffey and Wright in 2000. He has extensive experience in commercial
litigation and has been involved in several election cases. He notably represented Elian
Gonzalez and his Miami relatives (1). Coffey states that the Gonzalez case may have
stimulated minority voters, who had a great impact on the 2000 presidential election (1-
2). He details his election day recruitment to the campaign recount legal case by the
Democratic Party, adding that he is a Democrat (2-3). Coffey discusses planning
stages for the case and attributes popular support for litigation to prominent Democrats'
efforts to remove the stigma of bringing the presidency down to circuit courts (3-5). He
describes early Republican strategies, including using ringer attorneys specializing in
elections to block manual recounts (5). Coffey discusses the Democratic Party's lack of
mobilization and manpower to file cases and coordinate recount information and
explains the Democrats' choice of counties for recounts (6-8). He pushed to challenge
Palm Beach County's infamous butterfly ballot, and discusses associated legalities
before the case lost Democratic Party backing, emphasizing the constant balancing of
public opinion with strategies to pursue the recount (9-11). He expresses displeasure at
the Palm Beach Canvassing Board's conservative approach to voter will versus intent,
which segues into a discussion of the "chad" controversy (12-13). Coffey details the
case's federal appeals process, which initially incorporated the Fourteenth Amendment
(14). He talks about the precincts chosen for sample recounts, assessing the
performance of the Dade County Canvassing Board and describing county and state
suits and re-hearings (16-20). He discusses problems involved with the Florida
Supreme Court's November 26 deadline to complete recount: These include challenges
to the recount in Dade County, such as which votes could be counted, the problem of
Mayor Alex Pinellas, and the mob incident which caused the Board to waffle in forming
a time line to complete the recount (20-26). He describes the role of Palm Beach in
setting a standard for voter intent and the possibility that had Gore won in the recount,
his victory might be by such a small fraction that it would seem morally unacceptable
(24). Expounding on strategies to argue the case before the Florida Supreme Court, he
praises the judges for their calm in the midst of possible constitutional crisis, denying
charges that they were overly liberal (27-30). He lists judicial precedents for the hotly
debated November 26 recount deadline, as well as the reasoning and controversy
behind this date (31). Coffey discusses postdated overseas military ballots (32-33). He
voices his disappointment regarding the U.S. Supreme Court recount stay, and calls
their final decision results-oriented, which he believes smudges their Warren Court
legacy (33). He also states that differences in local election processes have historically
been tolerated, but that this decision can be extrapolated to mean that one standard
must be applied furthermore, he calls the decision's reliance on the Fourteenth
Amendment ironic (35-36). He considers the complexity of the issues and the
compressed time frames to be two factors in the difficulty of the case (37). He
discusses the impact of the case on his personal life, and on Florida politics, including
the roles of Secretary of State Katherine Harris and Governor Jeb Bush (37-39).
Although he fears that Democrats have learned little from this experience, he believes it
was a unique and defining moment in American law in which he was happy to
Interviewee: Kendall Coffey
Interviewer: Julian Pleasants
Date: August 23, 2002
P: This is Julian Pleasants, and I am with Kendall Coffey in Miami, Florida. It is
August 23, 2002. Would you give a brief background about your legal career,
and what you did up to the 2000 presidential election?
C: I graduated high school in Miami, did a little bit of junior college down here, and
then my undergraduate and law degrees were at the University of Florida. I
clerked after graduation with a Fifth Circuit judge. I was then, for ten years, an
attorney with Greenberg-Traurig in Miami. I left in October 1988, founded a firm
with some other Greenberg-Traurig former attorneys. From 1993-1996, I was the
US Attorney in the Southern District of Florida. Later, in private practice
afterwards, I wound up with a firm that was Coffey, Diaz, & O'Naghten. That
dissolved in the year 2000. I have now, after a year of working for other lawyers,
I have now formed a law firm, Coffey & Wright, which is a partnership. It's almost
entirely a litigation practice. Prior to the recount litigation, my career pretty much
concentrated on commercial litigation, although I did get very involved in a
number of election cases. In particular, the mayoral elections of 1997 prompted
a case I brought challenging the outcome based on what we alleged to be
massive absentee ballot fraud.
P: This is Joe Carollo [mayor, Miami-Dade County]?
C: Yes, the Joe Carollo case. I couldn't give you an exact count, but I've done a
number of election related cases over the years. Both cases challenging
candidates, in terms of their ability to serve, challenging elections and questions
about elections. I refer to it as sort of a seasonal specialty that I get involved in
every two years, around election time. In addition to that, I do some white collar
criminal [cases], but my practice is predominately commercial litigation. Earlier in
the year 2000, I had been involved in a case on behalf of Elian Gonzalez and his
Miami relatives. So, I got a massive exposure to dealing with media and that
was, in so many ways, just a fascinating and exhausting experience. It was
resolved adversely to my representation to clients in June. So, from that period I
was just sort of getting back into my day job. Then, of course, as we know, on
November 7, some extraordinary things showed up in the election tallies in
P: How do you think the Elian Gonzalez saga affected the 2000 presidential
C: That's a great question because I think from the perspective of some, when
you're talking about a microscopic margin, the argument could be made, that
animated an already pro-Republican constituency among Cuban-Americans in
Miami-Dade County. [It] maybe brought enough additional voters to the polls to
carry the day. But I haven't seen that verified. At the same time, because it was
such a polarizing event, I would have to tell you that African-American turnout
was extremely high. The Anglo community in Miami-Dade County turned out
much more than usual, so it would be awfully hard to take that outcome and see
if there was a meaningful difference. At the end of the day, Gore carried Dade
P: In fact, by, I believe, fifty-three to forty-seven.
C: It's about a six percent margin. I've thought at times that if somebody wanted to
get a real handle on that issue, probably the best comparable would not have
been the 1996 election, where Clinton was an incumbent, reasonably well
regarded and did better than Democratic presidential candidates usually do. But
to track the 1992 numbers in which Bush and Clinton ran and see if there is any
statistical analysis that would tell you that there was a measurable upsurge for
George W. Bush that could in some way be attributed to Elian. But to me it's
inconclusive. Certainly, there were radio stations in this town that were
trumpeting the theme very aggressively. On most elections days, there's very
strong get out the vote efforts directed within the Cuban-American community.
Until some shrewd statistician's got time on his or her hands and wants to do
what I think would have to be a 2000 and 1992 comparison to get you closer to
an apples and apples comparison. I think it's an unanswered question. Probably
at the end of the day there are fifty factors which one can say might have
contributed to a microscopic margin like that.
P: What was November 7 like for you? What did you do on that day?
C: Well, I went to bed thinking Gore had won. Then, sort of in the middle of the
night, my wife let me know that they [network television] had reversed the
original call that had put Florida in Gore's corner. You may remember early on
the networks' call for Gore. There was sort of this cryptic mention by the Bush
camp of, "Well the absentees [ballots] haven't come in, it's too soon to call."
Then, obviously at some point, in the very, very early morning hours, I sort of
wandered down and started looking at the television, I was astonished. It was
just as amazing a thing as you can imagine to see how close those totals were,
to realize the presidency of the United States and some fair degree of world
history was going to turn on a very few votes in Florida.
P: When were you first approached to get involved with the campaign recount and
who contacted you?
C: I was contacted that morning relatively early, I'm not clear who the first person
was to contact me. I traded calls and talked with Ben Kuehne [attorney for Al
Gore in 2000 election], a very good friend of mine that I'd worked with on a lot of
election cases before. We're both Democrats. We're both Gore supporters. We
were obviously looking at those numbers and sort of talking about some of the
issues. Fairly early on, I had discussions with different Democrats around the
state, including Tallahassee, and including nationally.
P: Mitch Berger [attorney for Al Gore in 2000 election], I believe. Did you talk with
C: I don't know if Mitch was one of the first people I spoke to or not. I was directly in
contact with someone in the state party's office. One of the senior counsel for the
DNC was on the phone with me as well.
P: Is Ron Klain [chief of staff to Vice President Al Gore; head of legal operation for
Al Gore in 2000 election] involved at this point?
C: Not on that day.
C: I may have spoken to him at some point in the day, but we were very focused
that first day on Palm Beach County. We had people in my office trying to really
get information from all kinds of issues, because the margin was so close that
any number of challenges or irregularities could have been critical to evaluate.
There was a massive amount of information coming in from Palm Beach County.
We were tracking that and we were in touch with people who were there and
were encouraging people to get affidavits. The discussion that day was
beginning to crystalize about a potential challenge to the Palm Beach tallies
based upon the so-called butterfly ballot.
P: Now on the ninth, I believe you were in Tallahassee meeting with Warren
Christopher [U.S. Secretary of State, 1993-1997; Deputy Secretary of State,
1977-1981] and Bill Daley [campaign manager for Al Gore in 2000 election;
Secretary of Commerce, 1997-2000] and at that point Ron Klain would have
been there. I spoke with Ben Kuehne, I think he was there as well. What was the
essence of that meeting? What did you talk about?
C: That was a basic overview of Florida election law, and what some of the issues
were. And time lines and options with respect to primarily a butterfly ballot
challenge. That was the original focus. To some extent, I think that's why I was
brought in immediately. We talked about the Beckstrom case [Beckstrom v.
Volusia County Canvassing Board & Robert Vogel, Jr.(1997); Beckstrom, a
losing candidate for sheriff argued that he would have won the election were it
not for the negligence of the county canvassing board. He accused it of
tampering with absentee ballots by darkening marks that were too light and could
not be read by optical scanners. The Florida Supreme Court ruled that the
board's action, while it was a violation of election law, did not amount to fraud
and did not subvert the will of the people in electing Robert Vogel, Jr., as sheriff]
which was the Supreme Court of Florida case that they continued to enlarge in
the entire analysis and reviewed the time lines and the mechanics of a statutory
election contest, venue issues. There were a range of questions. That was the
focus of the briefing.
P: That briefing was primarily for Daley and Christopher and Klain, I presume.
C: I know, I spoke to him [Klain] at different points that day. I don't know if he was
there at the first meeting. I sat down with both Secretary Daley and Secretary
Christopher who were present.
P: What was their early function? Were they going to be making decisions on the
ground or were they consulting with Gore? Was Klain the intermediary between
the lawyers and Gore?
C: My sense is that they were the leaders. I assume that since the ultimate clients,
in a sense, were Vice President Gore and Senator Lieberman that they were
consulting with them as was seen to be appropriate. But my sense was, and the
context of the conversation assumed, that these were the leaders.
P: How would you assess their performance? I've talked with a lot of lawyers and
they argue that Jim Baker was more aggressive and more outspoken and that he
was more affective in winning the public relations battle.
C: I'd disagree. First of all, I was amazed how smart they were. I was going
through a lot of concepts and things that I had spent years doing. They got it
instantly, I was very very impressed. I thought they made all the right public
relations [decisions], if to the extent that public relations was part of it. But
ironically, even though Gore was behind by a gnat's whisker, as far as the rest of
the country was concerned, we lost. They did everything they could to put out
the message that, "Look, we were significant winners in the popular vote, by a
much bigger margin than you talk about in Florida. It's just this sort of odd
constitutional incongruity about [the] Electoral College, or our guy would be
preparing his acceptance speech." From day one, rightly or wrongly, maybe
understandably, we were the losers. To a certain extent, we were always
walking on eggshells. Although they never said it, the idea of the loser of a
United States presidential election, going to court of all things, was a very, very
dicey thing, both politically and from a public relations standpoint. The entire time
this process was underway, the entire effort was a considerable risk. Two
Democratic senators walk up to the podium or senior people in the House, and
say, "Come on Al, you lost, be a good sport, surrender your political ambitions for
the good of the country, we've got to move on." That risk was ever present. If
you look at it in the context of this tightrope we are walking on from the very
beginning, they had to be more measured in their steps.
The public relations and communications staff, whatever the appropriate
description is, did a phenomenal job because we never knew one day to the next
when for political and public relations reasons, it would be over, and everybody
would say, "You lost. Stop dragging the presidency into the circuit courts where
they have divorces and P. I. [personal injury] cases." Yet that didn't happen. We
were able, in effect, to get enough popular support for this litigation that we were
not shut down based on public opinion. I attribute that to very thoughtful
management of the effort by Daley and Warren Christopher. [It was a] very good
job by the on the ground press people. Both sides had great press
organizations, obviously, but I thought that on the press side, the Democrats and
the judgement they exercised fought it to a draw and gave the lawyers time to
take their shot.
P: They pointed it out that the Bush campaign filed the first lawsuit.
C: Absolutely, but even then, it didn't seem to buy them [Republicans] much grief. I
mean, we didn't go to court first and the criticism that I am sure is always the big
one is why didn't you guys request a state-wide recount. Well, that's a fair
question, but at the time, if you go and simply file a blanket request in all sixty-
seven counties, without a particular legal basis, why would we know that there
was anything wrong with the way the votes were counted in Wakulla or in Liberty
County, or in Jefferson County. You're supposed to have a real legal basis to do
that. I think their judgement, although the recount lawyers recommended that...
P: These are the Boston lawyers?
C: Yes. They're, I didn't know this before this litigation, but they're national recount
gurus and they go around and do recount stuff all over the country. They all
recommended, there's no doubt, that all the counties be requested. Not because
they had a specific legal basis to do so, but because manual recounts
traditionally favor Democrats.
P: Plus the more votes you count, the better chance you have?
C: I think it was more [that] their experience told them that in any given election, by
in large, manual recounts are a better thing for the Democrats.
P: But their advice, their emphasis, was on the undervotes.
P: Which, in retrospect, might have been an error had they gone through the
process of a recount of all the votes.
C: Who knows? The only real counts that have been done, have been done by
media. As far as I'm concerned, you'll never really know. At the time there was
a great concern about whether it would be politically viable, consistent with what
the public would accept, consistent with what other Democrats would accept, to
go through litigating the presidency of the United States. That's why they
necessarily had to base some of their decisions on concerns about public
perceptions. Jim Baker didn't have to, he could go to court with a lawsuit that at
the time was seen as pretty flimsy. Because they had won, they didn't really burn
up much good will on that, and they were in a position to be more aggressive.
P: Plus, you had to file separately in each county. Each of the sixty-seven counties,
so there's a manpower question.
C: Yeah, there's a manpower issue, and frankly there was not good information from
the ground in a lot of the counties. I'll never forget the day I got a call from an
Orlando Sentinel reporter telling me about what happened in Lake County where
they did a recount and Gore picked up well over a hundred votes, in Lake
County, [a] Republican stronghold. It just sort of struck me after the time that
nobody from Lake County, that I know of at least, there was no organization
intact that said, "Hey, by the way, this is what's going on here." Some of the
things that struck me from the whole thing was that the Democratic Party,
statewide, did not have good on the ground intelligence within that critical
seventy-two hour period.
P: I think that's correct. I talked with Bob Poe [chairman, Florida Democratic Party]
and he was saying that in some areas they simply had no information, or
P: Plus, the key decision at this point is to ask for a recount in four counties. How
did the decision get made about which counties?
C: I think that the decision was made at the highest levels not to ask for recounts
without a basis. You had to have some reasonable basis to think there was
something wrong with the way the votes were counted [in that particular county].
Those are the only four counties where anything showed up in that critical period.
I think that if Lake County had called in, which I don't think they did, and said,
"By the way, we've got this odd thing, you've got a goodly number of over votes
at issue." They would have done something with it. They were looking for
counties where there was some basis to make a request. But to do a blanket
request for all sixty-seven counties was seen as being a stall. It would look like
they're delaying, that these guys are desperate to win. They had no possible
idea what's wrong with Indian River County. Why anyone would think those
votes weren't correct, and yet they're still asking for recount just because they
lost. They're sore losers.
P: Several people I've talked to, Mitch Berger, Bob Poe, and others, in retrospect
say, they should have challenged Duval County and had they known enough
about that situation, they would have included that.
C: I have heard so much since then about Duval County. I'd have to think you're
right, but was anyone telling Poe? The state party was not just limited to
whatever good information they got. I don't know what they were hearing from
Duval County. We were all chasing down a lot of information that proved not to
be productive. There are odd things, somebody leaves in the polling place some
part of the machines, and people think that's an irregularity. There will be a lot of
calls and criticisms from legitimate people, honest people, bright people who may
have simply been misinformed or misunderstood something. So, in those critical
days, you just got a couple, there was information that really wasn't meaningful
that was being examined and just an awful lot of places where they weren't
hearing anything about anything. Now I wasn't in the phone booth with Poe and
company hearing everything they heard, but I'm assuming that the more
significant things probably came my way at some point. I heard nothing about
Duval County in those days. I heard nothing about Lake County. In the counties
that checked in and weighed in, they asked for recounts in [four].
P: The Republicans argue that this is cherry picking. That the Democrats only ask
for recounts in counties highly favorable to the Democrats.
C: You know, I guess what I would suggest to you is that was not the basis.
Because the Democratic recount experts believe that even a county that Gore
lost would, based on the history, they [would] still probably get some ballots for
Gore. That because Democratic voters, for whatever reasons, didn't do their
punch cards as well as other folks. So, from the Democratic perspective, even
counties that we might be losing in, would still probably be counties where if you
did a manual recount, we'd lose by a little less. And, of course, anything that
pushes your numbers up takes you that much closer to the presidency. I don't
think that was the basis. I think to some extent, Dade and Broward and Palm
Beach were relatively well organized, and had active organizations and
structures and that probably contributed to it.
P: It'd be more difficult to do a recount in Lake County, for example.
C: I don't know what the status of the Democratic structure was, but if you got what I
think, from a public perception standpoint, and even from a doing the right thing
standpoint, is a position that, "We'll seek recounts everywhere there's some
basis to do it."
P: And certainly in Volusia County because of a false count from a machine that
was an obvious error.
C: You know, I had waited on Volusia specifically because somebody, an active
Democrat, happened to be there and told me there was some very strange
irregularities. Volusia turned out to be very legitimate. I think at the time we
were pushing for it, I don't even remember what the margin was in Volusia,
maybe Gore won Volusia. But that was an example where there were some very
clear cut mistakes, and that's why Volusia got on the list. Their Republican
supervisor strongly supported the recount. I think the focus as much as anything
was trying to find counties where we had some basis to do it. I think our experts
believed that it would favor the Democrats to do every county.
P: Do you think at this point the Democrats thought they could get enough votes,
assuming all four of these counties recounted, that they would get enough votes
to put Gore in the lead?
C: You know, I wasn't a part of that discussion. Because at the time, this was not
the only thing being talked about. This was a seventy-two hour window.
P: Seventy-two, right. [The petition for recounts had to be made within seventy-two
hours after the polls closed.]
C: I was still, rightly or wrongly, somewhat interested in advocating for the butterfly
ballot contest, which clearly would have put enough votes in our column. Others,
and I'm told, I don't know if this is correct, but including David Boies [attorney for
Al Gore in 2000 election], thought that some of the absentee ballot challenges
should be supported by the Democrats, by Gore or Lieberman. So, in those
critical couple of days, I don't think it'd been decided by anyone that the only
option was going to be a manual recount option. And that therefore, there needs
to be precise determination [as to whether] these four counties give you enough
votes. I don't think it really advanced that far. But having said that, it's no
mystery that Broward and Palm Beach are probably the two most important
Democratic counties in the state. So from that standpoint, if somebody was
focusing on, "Could these four counties make a difference with a margin of a few
hundred votes," I'm guessing that somebody thought it might. But at least from
where I was sitting, the Palm Beach butterfly ballot challenge was still actively
P: So that's how you ended up in Palm Beach first, as opposed to being in Dade
C: Well, my chronology really had me involved with the folks through those first days
in Palm Beach. I was on the phone with them a lot. Again, conferring and
consulting with different individuals about the viability to challenge, venue issues,
how long would it take. [Discussing things like] was it really realistic to get a re-
vote, schedule a new election, and all that within the various time frames that are
involved for getting a president into office. Pretty quickly, I got directed to Miami-
Dade. When the decision was made to recount Miami-Dade, my recollection is, I
was not continuing to focus on Palm Beach. Ben Kuehne actually became
involved in the recount issues in Palm Beach. I was assigned to [the] Miami-
Dade County Canvassing Board recount.
P: Discuss this challenge to the illegality of the butterfly ballot. I think you indicated
that in terms of how the names were listed, they were supposed to be to the right
and they had not followed state law.
C: Yes, and that was my judgement that they had not followed state law, and I
realize that ultimately the case was brought by some others, and I think that
challenge was rejected. Truthfully, I don't think, having tracked a lot of election
cases, if a candidate doesn't bring the case himself, it doesn't get won. I'm not
aware of these cases getting won by surrogates. From my perspective, once the
senior leadership of the party makes the decision that they're not going to put
themselves behind a particular challenge....
P: Which they did not.
C: Which they did not. I think the challenge is extremely uphill at that point. So,
getting back to the butterfly ballot, I thought the case had spectacular factual
support because it was very clear, we recall even Pat Buchanan [unsuccessful
presidential candidate, 1992, 1996, 2000] sort of saying flippantly that he knew
he didn't have that many votes in Palm Beach County. The people of Palm
Beach County were genuinely outraged. There was real dismay and distress. I
can hardly ever recall a period where so many affidavits were collected so
quickly. So you had not a technical challenge, you had a real injustice there. The
best cases are where factually and morally something very wrong happened and
something very wrong did happen in Palm Beach County. I believe that, based
upon my reading of the statute, and the different statutes that discuss the way
the ballot is supposed to be done, and the fact that when the Secretary of State's
office sent out the sample ballot, they did not have a butterfly ballot for the
presidential election. I think that was something that the supervisor of elections
[for Palm Beach County] was legally obligated to follow.
P: Well, they certainly didn't have the little holes on the ballots so that you could tell
the names of the presidential candidates.
C: Right. The Palm Beach supervisor did, but we're talking about something
different. I'm talking about the fact that the Supervisor of Elections for the state of
Florida sends out to the local supervisors some model guidance on the ballots.
That was ignored by [Theresa] LePore [supervisor of elections, Palm Beach
County]. She did her own.
P: But they do that all over. We've talked to Election Supervisors. Duval County
did it differently, Broward County, they all did it differently. Theresa LePore
decided as you know, that it would be better for the elderly population if it were
bigger print. She didn't do it deliberately to confuse anyone.
C: No, nobody said it was deliberate. Like everything else in life if the divergence is
material, I think it is a legal matter. If the divergence that the local supervisor
does is immaterial, then I don't think they violate the law. Here the materiality
changed the outcome of the presidency. So, I liked that challenge, I understood
the problems, and I think the Democrats decided that they were much better off
counting votes than uncounting votes-[both] from a public opinion standpoint and
a standpoint of keeping the congressional senatorial Democrats on board with
going forward with this challenge.
P: What would be the remedy of a flawed ballot?
C: A recount, a revote.
P: Could you really revote? Is that practical?
C: If you did it fast enough. Florida courts have moved in warp speed in election
cases. I've had appeals soup to nuts in three days. Trials can be done within a
couple of days, so I had mapped out what I considered to have been an
ambitious but doable schedule for getting it done. But understand, at the time,
no one was sure if we would have until, in effect, mid-December. People thought
we might have a week or two before the public said, "Enough of this." So, there
was a self imposed time constraint to focus on things that could happen
immediately. Because of the concern about public willingness to tolerate this
litigated presidency erupting.
P: Little did you know it was going to be thirty-six days.
C: If somebody had told us on day one that you guys are going to have thirty-six
days, go for it. I think that would have had a very big effect on strategies. I think
they might very well have asked for sixty-seven recounted counties, or at least
thought about it more. But again, there was a clear sense that this could be over
P: What about the argument that in the Palm Beach County voting, and the figures
have varied, but ninety-four percent or ninety-six percent of the voters voted
correctly? There were only four percent that did not vote correctly. So the
argument from the Republican side is that this is simply voter error. If you vote
incorrectly, your ballot is not counted.
C: Well, that's pretty much true in any election challenge. Whether it's fraud or
whether it's just negligence, the vast majority of people vote the way they want to
and vote honestly. I think, historically, the standard in Florida is to show enough
votes to change the outcome of the election. So, in that sense, I really think it's
beside the point to say, "Well, a lot of people got it right." Yeah, that's great. If
you can show that margin was attributed to some basic failure of the system,
then that means the system didn't work, because what it really means is that the
people of Florida did not have their choice accepted by their electoral system.
Which is what happened.
P: As you indicated earlier, the Florida Supreme Court has ruled in the past that if
there was an opportunity to determine the intent of the voter....
P: Then that vote should be recounted.
C: That was the key turning point, because Florida has been something of a strict
compliance state. In the case which sort of revised that in the 1970s, the Florida
Supreme Court said, "No, this is really a will of the voter state." And that
continues to be the law. There's a balancing between certain kinds of things,
especially corruption and fraud. But by and large, we're a will of the voter state
now. In that sense I think, and I'm far from objective obviously, but I think
everything the Supreme Court of Florida did was very consistent with the judicial
policy that had been the standard for twenty-five years.
P: How would you assess the performance of the Palm Beach Canvassing Board?
Theresa LePore and Judge [Charles] Burton [Judge, County Court, Palm Beach
County; Chairman, Palm Beach County Canvassing Board]? I know you weren't
on site, but in reacting to what happened, what was your response? Did you
think they were effective? Efficient?
C: I was somewhat dismayed. There was a period where, for example, they
stopped counting, which I found inexcusable under the circumstances. I thought
that their unwillingness to deal more meaningfully with standards, then to adopt a
very conservative approach, was unnecessary and inconsistent with some of the
leading cases from other states and frankly, the will of the voter message. It
seems to me that if this is a will of the voter state, and that if you can determine
what does the law normally do, except in criminal cases, sort of a preponderance
of the evidence if you can determine more likely than not that somebody voted in
a particular way, that's good enough.
P: Of course, that's subjective.
C: Everything is subjective. Negligence is subjective, but typically if you see a
striking of a particular chad that didn't go through, what else does that mean?
There's no other striking on a presidential election. [These] kind of decisions are
made by most adjudicatory bodies, based on probability and some human being
makes their opinion on probability. From my standard at least, I thought that they
did not manifest great leadership or courage in the way they handled it. But, I
wasn't on the ground. There's a lot of controversy on it. I don't envy any
member of any of the Canvassing Boards in Dade or Broward or Palm Beach.
Volusia was a little different because they were sort of on board and had an
obvious problem [Unclear]. I think all the members of those Canvassing Boards
were in excruciatingly difficult positions. I'm not unsympathetic.
P: I've talked to all three members of the Palm Beach County Canvassing Board
and they would reflect that sentiment. Particularly Judge Burton, this was his first
P: And he got conflicting advice from the Secretary of State and from the Attorney
General and from Kerey Carpenter [assistant general counsel for the Florida
Department of State] who was on the ground.
C: He had several different lawyers, too.
P: Bruce Rogow [attorney for Theresa LePore in 2000 election] was there, a lot of
them. Should Judge [Jorge] LaBarga [Judge, Palm Beach County Circuit Court],
some judge, have set a precise standard?
C: Well, I've got to tell you, something like a jury instruction, should have been
issued by somebody.
P: Or even the Secretary of State.
C: Or the Secretary of State. I did not buy, will never buy the U.S. Supreme Court
view that there's too much subjectivity. I'll give you another example. In
absentee ballots in Florida, which Republicans certainly didn't criticize, but there
is a visual comparison of the signature on file with the Supervisor of Election, on
the ballot, or on the back of the envelope of the absentee ballot. They make a
visual comparison to make sure they check out. Do you think there are
standards for that? That is not done by experts, it's done by folks.
C: Yeah, well, a lot of times usually it's a judge, it's somebody on the county
commission, the same folks on the canvassing board. So, there's no standards
there. It's subjective. People do the best they can. But having said that, you
can't eliminate subjectivity. I don't think a strict mechanical rule would have been
appropriate with chads and anything more than this visual comparison of
signatures. But whether it's negligence, whether it's insanity in a criminal case,
you create a standard instruction of some sort. So that you have a consistency
and then you hope that human beings can be fair when they apply the standard.
That should have been done.
P: Another question that has come up, that's been sort of forgotten, when the
automatic one half of one percent recount was triggered, and I forget the exact
number but something like forty-seven counties did not recount the votes, they
only re-tallied the totals. I read you from Clay Roberts [director, Florida Division
of Elections], "Checking the totals is not enough. In order to do a recount, you
should run every ballot through the machine again." That was not done. That
could have had a major factor in, as you indicated earlier, Gore always being
C: It would've helped Gore. I didn't know why at the time, but now I understand that
every time you run a ballot through a machine, you're going to loosen the chads.
Now I don't think for five seconds that [this] defeats the will of the voter, it frankly
makes it more clear. But the odds are that running them back through the
machine would have helped Gore.
P: And, of course, that's why the Republicans didn't want to do that. Now let's talk a
little bit about how you got involved in Miami-Dade and exactly what
circumstances caused you to take on this particular responsibility.
C: Well, I was in Tallahassee on Saturday when we got wind of this law suit, of the
federal lawsuit that was being filed in front of Judge Middlebrooks. That was our
focus. I had not been involved in submitting the recount request in Miami-Dade.
I vaguely knew that a recount was being requested. I didn't know anything else
about it. My focus through Monday afternoon was on the federal court lawsuit.
We were able to get Professor Tribe to handle the constitutional issues.
P: Larry Tribe [legal scholar; author; attorney for Al Gore in 2000 election].
C: Then I argued in front of Judge Middlebrooks the state law issues and prepared
those part of the papers. Through that Monday afternoon, that was almost
entirely my focus. I actually had the privilege of sitting with Professor Tribe and
working on the papers late and then driving them out to the judge's law clerk.
P: What was your reaction to Judge Middlebrooks' decision in which he essentially
said it's a state matter, not a federal matter? And that there are sixty-seven
separate counties who count differently. That's the way the system's always
C: I think that decision was expected by everyone in the courtroom, including Ted
Olson [attorney for George W. Bush in 2000 election; U.S. solicitor general,
2001-present]. The initial press reaction was that the lawsuit was going
nowhere. I use that as an example because in a sense that was the same
lawsuit that they won the case on four weeks later. It's sort of striking to me in a
fascinating exercise in persistence and public relations that a basic legal
argument, that generally legal experts, judges the public was pretty dismissive of
day one, [which] somehow became acceptable at the end of the trail.
P: Because in that first brief, Olson did include the Fourteenth Amendment, 3.US.5,
and some other cases. The Republicans said, "Well you throw away everything
in the pot." But after that we do not see any reference to the Fourteenth
Amendment. The Eleventh Circuit Court of Appeals votes eight to four against
Bush, and that's a very conservative Republican court. You do not hear about
Fourteenth Amendment issues again until the five-four U.S. Supreme Court
C: Until the end of the day. It's essentially the same argument and I tease people
because I had the experience of going to the ABA [American Bar Association]
thing over a year ago and speaking about two cases I lost. Elian and the work I
did on the Gore thing. I would always tease people by saying we were so
confident that that argument was going nowhere that I was allowed to do part of
the argument in front of Judge Middlebrooks. Yet, that same argument that had
really looked pretty lame carried George W. Bush into the presidency. The truth
of the matter is, it's not a good argument. I think that once hanging chads were
not seen as the will of the voter, but seen as a late night comic's joke, they were
discredited. Bit by bit by bit, this whole notion that you're going to decide the
presidency based on chads, got very skillfully isolated as the real issue, even
though it wasn't. Plus, just the passage of time, I think that after five weeks
litigation, the American people are ready to have their president named. But use
it as sort of a fascinating exercise to sort of track the history of the Gore/Bush
recount litigation because in the final analysis, a litigation theory that was viewed
very dismissively on day one, carried the day. There wasn't political blood on the
streets. There wasn't an outcry. The Democrats were aggravated, books have
been written that really socked it to the Supreme Court, but the public wasn't
outraged that the US Supreme Court on that Saturday afternoon had ordered the
counting of votes to stop. You may even recall, that I think Boies was quoted
when they took the first certiorari petition after the first state Supreme Court case
saying there's no way the US Supreme Court [is] gonna take [this] seriously.
Everybody knows this is state law. The Republicans maybe understood that
court better than we did.
P: And of course, that's where the Republicans were going all along.
C: That's where they were going all along. Their analysis for now was yeah, we're
going to lose it for now, that's fine. We'll lose at the state Supreme Court, but
there's no way the US Supreme Court's gonna let anybody, any court, make the
key calls in their court, so that's where we're gonna end up some day. They got
there and it worked.
[End of side Al]
P: You sent a letter to Katherine Harris [Florida Secretary of State, 1998-present;
Florida state senator, 1994-1998], asking her to hold certification until the recount
was over. Do you remember the gist of that letter? Did you ever get a reply?
C: I don't recall the specifics. That was obviously our position.
P: This was more of a personal letter, but why not file a brief? Dexter Douglass told
me they thought at one time of bringing her, subpoenaing her, and getting her
before the court and asking her to explain how she had used her discretion. Do
you know why they chose not to do that?
C: No, because the same day that we were in federal court in front of [Judge]
Middlebrooks, there was some kind of action in Tallahassee that I think Dexter
was handling. And it really was on a different track and I wasn't significantly
involved in those issues.
P: While we're talking about Dexter Douglass, he argued very early on that what the
Gore team needed to do was go directly to the contest. And let the judges count
the votes instead of the canvassing boards. In retrospect, and we talked about
the difficulty of making these decisions, do you think that would have been a
C: You know, I haven't really worked through that. When you lose by a gnat's hair,
you think of all the things that could, would, should been done. I just can't
recall whether, if you file immediately for a contest, where that takes you. I'm
sure that the sense was, where you had Canvassing Boards that were granting
the recounts, at the end of the day you have to see what happens with that first.
And that process obviously became protracted a bit, but I couldn't really
comment on Dexter's observation.
P: Talk about what happens in Miami. What is your first action as you come back
from the Palm Beach case to the Miami-Dade Canvassing Board.
C: And again, I'm sort of slipping out of the Palm Beach case by Saturday. The
Saturday after the election. I remain engaged in discussing it.
P: That Saturday, November the 11th?
C: Yeah, because by then the federal case has been filed and I'm sort of handling
the Florida law issues for that. After that was resolved, I was contacted by
somebody in some way to get involved in the canvassing board issues. I never
actually participated directly in the Palm Beach [and] the Broward Canvassing
Board issues. I think I contacted Steve Zack [attorney for Al Gore in 2000
election], and I don't remember if he called me just to say, good going guys or if I
called him, but Steve's one of the, he's a great lawyer, but he's also an election
law specialist of various dimensions and a good Democrat. So, he and I were
going to crank up on the Canvassing Board stuff and I think it was a Tuesday we
got them to do, I'm trying to remember the timing now.
P: That would have been about right, that was the 14th.
C: There was a sample recount which they agreed to do
P: Ok, had that already been done?
C: No, maybe that was in the morning. Tuesday morning we asked them to do the
P: Joe Geller, who was head of the Democratic Party. He brought the request, did
C: He presented the request, yes.
P: As opposed to Gore.
C: I think that's right.
P: One of the arguments has been, you can choose any three precincts you want
for this automatic recount. And the Democrats choose 103, 203, 234 which were
overwhelmingly Democratic and of course that's absolutely legal to do, but the
Republicans thought that was an unfair sample. That if you wanted a recount,
you ought to take a more broad sample because even those choices only got
Gore six additional votes.
C: Yeah, statistically if you extrapolate that to be. I wasn't involved in selecting the
sample, I think Joe actually was or folks he was working with. We had some
statistical help in place by then. But I thought the Canvassing Board handled it
well. They really pushed the Republicans and said, pick your three. Which of
course they refused to do. So, I thought that was a pretty good counterpoint to
the criticism that these were selective precincts, why don't you pick three? I don't
really fault the decision because if you only get three precincts, you gotta try to
find what you can to make your point. I think the fact that the Republicans
declined to really respond helped us a little a bit. But the big problem on all of
that, was that as in most counties, Supervisors of Elections are very reluctant to
support manual recounts. A lot of times they weigh in very heavily on these
things. So, when the initial request was made for a full manual recount, it was
declined two to one.
P: Now David Leahy [Supervisor of Elections, Miami-Dade County; member, Miami-
Dade County canvassing board] had, in fact, voted that way consistently in other
C: In his entire career. I am told that he has never supported the manual recount.
And that is not, I mean he's very consistent. Most supervisors of elections are
just of the same mind.
P: The key swing vote obviously is Judge Myriam Lehr [judge, Miami-Dade County;
member, Miami-Dade County canvassing board] and she had not served on the
canvassing board before. How would you assess her performance and Judge
[Lawrence] King's [judge, Miami-Dade County; member, Miami-Dade County
canvassing board] performance on the canvassing board?
C: In a way it was inspiring. I was disappointed, but before we get to their final
decision, which I wasn't actually there for, unfortunately. They really struggled
with it. I could look her in the eye and say, this is a person who's trying to do
what she thought was right. I obviously didn't agree with her choice the first time
[she voted against the recount], and agreed with her choice the second time [she
voted for a recount], and I wasn't there to see what happened the third time, but it
was very clear to me that she and King were getting a huge amount of political
heat from everybody on both sides, no doubt. They were two county court
judges caught up in this historical Cuisinart, really trying to do what was right, I
P: Miguel De Grandy [Florida state representative, 1989-1994; Attorney for
Republicans before the Dade Canvassing Board] said that he thought that King
was heavily biased in favor of the Democratic party.
C: No, I think that's not true. King is an elected judge. He's got to run every four
years. His political advisors are Armando Guiterrez, who's very, very strongly
pro-Bush, and King, like everybody else in town, knew that there was a six
percent swing and that a lot of the people [who] supported Bush are much more
consistent voters in judicial elections than people who supported Gore. So, I
don't think that's true at all. I think both of those two were really struggling.
Struggling in the sense of trying to get through all this politically] excruciating
stuff. They've never been in anything like this before in their lives, and trying to
come up with the right outcome.
P: What about the argument that Roberts and Katherine Harris and, as I've
discovered, Mac Stipanovich [Republican strategist] made, that it was only an
error in the voting machine, although the law says error in voter tabulation. They
say it had to be a hurricane or electrical power outage for a recount.
C: I don't have the specifics in front of me, but we went through the statutes pretty
carefully and that's just flat wrong. Obviously, the State Supreme Court didn't
agree with that. I don't think there was a major authority that accepted or
embraced that argument other than those folks.
P: After the first Dade canvassing vote, two to one, the Democrats ask for a re-
hearing. Why did you decide to do that? What information did you have that you
thought you could use to change their minds?
C: Well, the Broward Canvassing Board had reconsidered. So, you now had Palm
Beach and Broward and we thought that was relevant. I think we also had...
C: Yeah, Volusia. Broward had actually reconsidered. They had initially denied a
full recount, and then they had reconsidered. And I think the Attorney General,
[Bob Butterworth-(D)] I'm trying to remember the time frame but I thought his
letter or his opinion on the issue you just mentioned, whether a recount could do
anything more than address machine accuracy. Because Dave Leahy had
mentioned that in the initial deliberation and the Attorney General had, I think by
then, taken a different opinion. So, a couple matters developed. We got, on the
non-legal front, we became convinced by that Wednesday or Thursday, that a
recount in Dade would not hurt us. It had been wondered about and talked about
among Democrats, whether a recount in Dade would really help. Because on the
theory that the usual assumptions that recounts benefit Democrats might not
apply in Dade. I had requested some kind of statistical work to make sure that
we wouldn't regret what we were asking for. We ultimately got a confirmation
that satisfied us that a recount might help, but certainly wouldn't hurt.
P: The Republicans, of course, are going to argue that the more they are counted,
the more the ballots are degraded. There is no tabulation error by the machines,
and Miguel De Grandy accused Steve Zack [attorney for Al Gore in 2000
election], primarily, of arguing in emotional rather than legal terms. And I think
Steve was trying to say this is, to a large degree, an issue of fairness. Did that
enter into your presentation?
P: Yes. It is unfair to both the voter and to Gore not to count.
C: See, I always thought it was the ultimate in fairness to be counting everybody's
votes, especially because there were questions about Dade County and whether
or not it would be a huge windfall for the Democrats, in any event. I think
fairness generally does militate in favor of counting more votes rather than less
votes. I think De Grandy's critique, Steve had talked about his grandfather who
had to live in Cuba, and about the importance of the American democratic
process from the standpoint of his grandfather. But it's not unusual [when]
making legal arguments, for speakers to talk about personal experience and
personal perspectives. I think by and large both sides pretty much argued their
best cases and I didn't think either side did anything that would have caused an
experienced trial judge to call mistrial, in terms of improper argument. But some
of the arguments were that you haven't proved a thing with your three votes in
three very, very heavily Democratic counties. That doesn't support you in the
slightest. The statisticians on both sides, both sides had statisticians, but Dade
was never, from a statistician's standpoint, an overwhelming case. So much so,
that I like to point out that when the trial came around in Tallahassee neither side
presented statistical evidence [showing] that they would have won.
P: This is the contest before Judge Sanders Sauls.
C: Yeah. And the Republicans did not present a statistician to say that you would
have still lost. Which tells you how close it really was.
P: The Canvassing Board reverses their first decision, and votes two to one to do a
recount. Why do you think Judge Lehr changed her vote?
C: The state Supreme Court had also issued some kind of stay and I think she
began to see that there were just very, very real questions. That whatever this
was it was very close. Everyone from the state Supreme Court to the Attorney
General to others to other canvassing boards, really wanted to take another look
at things. And so, at the end of the day, my speculation is that she felt more
comfortable in saying let's count all the votes and let the chips fall where they
may rather than turn away and walk away because it's too much trouble. I think
as events were accelerating and intensifying, someone who I think was being
conscientious, just said, look, we've gotta know what really happened here.
That's my view of what happened.
P: The Republicans immediately filed an injunction with Judge [Margarita] Esquiroz
[judge, Miami-Dade County Circuit Court ] and I believe Judge Tobin.
C: Esquiroz had it for the weekend. We did a phone hearing with Judge Esquiroz.
P: She was in Key West
C: She was down in the Keys and then Tobin was the regularly assigned judge and
that went nowhere. But looking back at the Republican strategy, they didn't file
that lawsuit thinking they would win. They filed it to complain about hanging
chads and to dramatize chads falling on the floor and being swept away. In other
words, their strategy was not to file a lawsuit like that thinking they could win, the
lawsuit had no chance, but [did this] just to keep the issue out there, hanging
chads are silly. Machines degrade the ballots when you try to do another
recount. People handling them degrades the ballots. They used the lawsuit to
get their message points out there.
P: Was this just a delaying tactic?
C: No. To some extent, yes, because there is a very, very critical race for time.
And the Dade Canvassing Board didn't work that weekend, unfortunately. And
that turned out to be pretty critical. They insisted on, I think they'd maybe had a
Saturday morning session to talk about procedures, but they didn't start counting
until Monday. So two very, very important days were lost. So, to some extent,
the Republican strategies were obviously consistent with doing anything they
could to slow it down. But also, getting out their basic thesis of sort of ridiculing
P: Also, I know Miguel De Grandy wanted to look at both sides of the ballot and they
challenged a huge percentage of the votes that the Canvassing Boards decided
C: It was done with all the Canvassing Boards, the others too.
P: The Democrats challenged everything as well. The problem for David Leahy as
he begins to count, and I think there's 650,000 ballots, he set up twenty-five, two
person teams to start the counting; but as they begin the counting, the Florida
Supreme Court on November 21s issues the seven zero opinion stating that the
recount will continue but it has to be completed by November the 26th. What was
your reaction, number one to that decision and Leahy's response to that
decision? Because, as soon as he saw the 26th, he said, we can't finish, it
doesn't give us enough time.
C: That's not quite right, my reaction was of grave concern. I was probably the only
Democrat, I think it was a Tuesday night that the decision was handed down?
P: Yes, Tuesday night.
C: I may have been the only Democrat standing around a group of people that
wasn't jumping for joy. Because I was very concerned about that. I got on the
phone to try to get the word out that we've got to make sure that there are
enough people there, enough resources for Dade to get the counting done. That
Monday and Tuesday, Dade had had very surprisingly good results for Gore. A
big reason is simply [that] the recovery rate was very high.
P: He had forty-six votes when the counting, the recount stopped.
C: I don't remember what the margin was, but I know everybody was struck by the
fact that Gore was really moving ahead. There was a frantic reaction, and you
recall all the people that sort of besieged the Miami-Dade Canvassing Board. It
was attributable to the political spin that the reason Gore's doing so well is
they're starting out with good Gore precincts. And there's some truth to that, but
the larger reason, and the reason that the Republican strategists were really
concerned is they were using a high recovery rate. That is to say, that whereas
the Palm Beach Canvassing Board took a very conservative view, the Dade
County Canvassing Board was taking what we thought was the correct view that
it's a true voter's intent standard. And their percentage of previously uncounted
votes, that [were] now being counted, was higher than either Palm Beach or
Broward. So, that was really the dynamic unfolding that was creating some
consternation in the Republican camp.
P: In general, what standard were they using?
C: Well, they were not limiting themselves to this corner or that corner. They were
just making a judgement that if we think it's pretty clear what the voter meant to
do here, we're gonna count the vote. So, the next morning they discussed it and
basically Leahy said, with the other two Canvassing Board members, that they
could get it done. That it would be tough, but they could get it done. And he
quoted, and I'm trying to remember the rate that they would be able to achieve
per hour. You know, everybody would have to roll up their sleeves to get it done.
That was a Wednesday morning, when the canvassing board first reconvened in
the wake of the [state] Supreme Court decision.
The next few hours were chaotic. They involved people pounding on doors and
people yelling and screaming and when they reconvened, all of a sudden
everything was different. There were a number of oddities throughout that period
that I will always find troubling, but the bottom line is that they reinvented their
math and determined that the rate at which votes could be recounted was a lot
lower than what they'd said that previous morning. I've probably kept track of the
numbers somewhere because they basically came up with the new position that
it was a physical impossibility to get the votes counted on time, which it was not.
In fact, [this] contradicted the statements Leahy made on the record that
P: As a point of interest, when the Dade County votes were finally counted by Judge
Lewis and other judges, they finished in one day. Although obviously there were
no challenges. Now, we have an interview with David Leahy and his argument
was that it didn't matter so much about the number of counting teams, what the
issue was, was the canvassing board. The three members of the Canvassing
Board could not get through all of these votes with all of these challenges by
November the 26th
C: That's not what he said in the morning. David Leahy understood the process. In
the morning, they talked about what the Canvassing Board itself could do
because of course that is what the law says, the final call is made by the
Canvassing Board. The math got dramatically revised in the terms of how fast
they could work.
P: So, you think that the so-called Brooks Brothers Mob intimidated the Canvassing
C: Absolutely. I'm sure there was political heat. I don't know what was going on that
channel, but [I] do know that there were statements that were made on the
record manifesting their dismay about all the disruption and confusion and the
impact that would have on their ability to get through it.
P: Were you there when all of this was going on?
P: What Leahy said, is that they decided to move from the eighteenth floor to the
nineteenth floor and that they thought it would be more efficient because that's
where they were separating the undervotes. There were 10,750 undervotes and
they had to separate all those out. Of course, once they got there this group of
protesters didn't have enough room, couldn't see, they argued that it was a
violation of the Sunshine Law. Did that have any validity?
C: I don't know, I wasn't familiar with the dynamics, but they were acting like a mob.
People were physically assaulted among some of the Democratic observers, [at
least] four or five signed affidavits to that effect. They were behaving like a mob.
And whether that physically intimidated the Canvassing Board in the sense of
their own concern about physical safety or whether it simply gave them this
overwhelming message of disruption that indicated that this wasn't going to be
doable to get it all done with this kind of interference and commotion. I can't tell
you which it was or whether it was a combination, but what I can tell you is it is
hogwash to take the position that it wasn't doable in a mathematical sense or in a
timing sense. All the more so because that morning when they looked at exactly
the same Supreme Court of Florida ruling, they concluded that, unmistakably, it
would be tough. It would be tight, but that they could definitely do it.
P: In The New York Times, Leahy was quoted as saying he was intimidated, but in
later statements and in the interview we did, he said that was not an issue at all.
C: It was classic revisionism, like so many things, he obviously thought that maybe
that wasn't what he should have said publicly and took a different spin.
P: He did say in the interview it was a terrible mistake, and he would not do it again,
to move from the eighteenth floor to the nineteenth floor.
C: Yeah, but that's really a lesser issue because they could have moved back to the
eighteenth floor. That wasn't really what drove the decision. The Democrats that
were involved in that process will always be very skeptical about everything that
was going on in those critical hours.
P: Joe Geller [chairman, Miami-Dade County Democratic Party] had gone to get
one of the sample ballots, and when he got one of the ballots somebody said,
he's stealing the ballot, stealing the election. And they apparently, I wouldn't
know what the correct term would be, roughed him up a little bit.
C: Yeah, he was physically [assaulted], he wasn't bloodied, but according to my
investigation you could say he was punched. He was pushed, he was shoved,
he was punched. To my knowledge, there were at least four other Democratic
workers or observers that also got pushed or shoved or hit in some way.
P: Why didn't the Canvassing Board or the sheriff clear the room?
C: Great question. I don't think it was a shining hour for county government
because they should have had whatever staffing [and] whatever security forces
were required, and they didn't.
P: What if they had completed the count? Would it have made any difference in the
overall election? Because it's getting pretty close now because Gore's picked up
some votes in Broward and he's picked up some votes in Palm Beach and fifty-
one in Nassau. The difference is narrowing. Would there have been enough
votes to make a difference?
C: Yes, probably, but the key from the Democratic standpoint was Palm Beach and
getting a better, what we believe, more appropriate standard. For example,
along the lines of Broward, there would have been a 500 or 600 additional votes
pushed into Gore's column. With Miami-Dade, even tracking along at a decent
recovery rate, it could have, without further push from Palm Beach, taken Gore
ahead of Bush, but it would have been probably very, very minimal. One of the
great questions I had is whether, if a manual recount had put Gore ahead by
thirty or fifty votes based on Dade County, whether that would have been a
morally acceptable outcome to say that somebody who loses by a few hundred
votes on the machines is pushed ahead by thirty or forty votes on this human
counting scenario. So, I was concerned that we could end up with an outcome of
having Gore ahead by an even smaller margin than Bush had won by. And that
is, we'll never know, but that is a conceivable scenario.
P: But the media recount seemed to indicate that Bush would have won anyway.
C: I don't think that was right.
P: Why didn't they choose to just do the undervotes? They certainly had time to do
C: [Are you] talking about Dade County?
C: Yes, absolutely. That's actually what we asked for. The canvassing board
decided to do all of the ballots. I didn't have a sense of this overvote issue at all.
Some people who'd been doing recounts, and recounts were not part of the
election cases I've done as I think I told you. I did challenges, I did the kind of
things that have been more consistent with the Palm Beach butterfly. But
whether it was not getting enough intelligence from the field, the kinds of things
Chairman Poe talked about or whatever, the focus was [on] undervotes. And our
request was 10,000 undervotes and one of things that Leahy talked about doing
that morning, the Wednesday morning, was just the undervotes. So they could
have done it readily.
P: Well, with Judge King, in the 3-0 vote to stop the recount, one of the reasons he
voted to stop it is that he thought all the votes should be counted or none of the
votes should be counted.
C: He was consistent.
P: He had said that earlier.
C: From day one. That had always been his position. When we had asked for just
the undervotes, which was again, our request, he voted for all the votes. On
each turn, the first voting and then the second one when Judge Lehr joined him it
was all the votes. So he was very consistent.
P: What about this group on the nineteenth floor? It has been rumored and to some
degree verified, that these were congressional staffers. They were hired
Republican protesters sent deliberately to undermine the process. Would you
agree with that?
C: Well, I mean there were certainly Republican partisans, we know that. In fact,
the one witness I crossed examined in the trial was one of those partisans. We
put up a picture of him..
P: That's the one who claimed he wasn't there until you showed the picture of him
C: Yeah, we put his picture up and it was my, I won't say fifteen minutes of fame,
because it was probably ten, but that was my moment in the trial. And that was
actually brought out by the media. We didn't know at the time where that came
from, but the media actually sort of tracked it down. I don't know when they all
sort of converged in Dade [on] day one what their plan was, but obviously they
had a sense of being pretty aggressive and their basic premise was opposition to
the manual recount. Were they there as thugs? I don't think that would be fair.
But were they there with the basic sense of voicing in every way they thought
they could do legally, all the kinds of opposition to the recount? Of course that's
what they did. And it was systematic in the sense that they were obviously
brought, sort of organized and brought down for no other purpose than to
address the manual recount in Dade.
P: I thought it was interesting. The other day the final figures were in and the Bush
recount campaign outspent the Democrats four to one. Something like $12.5
million to $3 million. Was that a factor?
C: No. No, I mean everybody had all the legal talent they could ask for. Everybody
was committed and there were more volunteers than anyone could use. It wasn't
a question of resources.
P: I noticed that the Bush administration has awarded federal jobs, Bob Zolnick is
one example of those who were involved in these protests, but that's pretty
traditional politics, isn't it?
C: I'll be going to Mark Jimenez's swearing in, in a little while. He was with White
and Case and he was working on the other side of some of those things. You
bet. I've teased people that I counted on being the ambassador to Ireland from
the theory that it wasn't going to be as big a perk as some of the other things.
No, to my knowledge the people that the Bush administration has appointed, by
and large, are qualified people. Frankly I don't think, on the Democrat side, I've
never heard of anybody talk about getting a position in the administration. I don't
think anybody's focusing on that. It was sort of this ultimate lawyer's case where
you believe in what you're doing, in your arguments and your working with this
great group of people, day and night, and there wasn't any thought about is there
some reward at the end of the day for this. But it's perfectly natural that the Bush
administration put together what they thought was the best legal talent they
could. People that you think are very good lawyers and loyal are going to be first
in line to get positions.
P: One of the interesting aspects of this case, and you may not have any specifics
on this, but I know the Gore team was very disappointed in Alex Penelas [mayor,
Miami-Dade County, 1996-present]. They had hoped he would use his influence
to get the Miami-Dade recount started again. He had promised Tennessee
Congressman Harold Ford that he would write a letter to that effect. What was
Penellas' position in all of this activity?
C: Early on, when the initial decision was being made, he had signaled that he
would. He didn't tell the Canvassing Board what to do, but that he would make
sure that if they decided to go with a recount that they would have all the
resources that were needed to get the job done well. And then he sort of oddly
disappeared. In the critical days, I will never know whether there is any validity to
[the] assortment of rumors about his involvement. I've heard the rumors, I hear
all kinds of rumors in this county that are baseless, so the answer is, I don't
know. He sort of dropped off the map that Tuesday and Wednesday, from the
P: From talking with other Democratic lawyers I think they were a little disturbed that
he had not at least given some verbal support.
C: I think there was disappointment that went to the highest levels of the Democratic
P: Talk about the presentation of your case before Judge Sander Sauls. Now you
have gone to the contest. What was the major argument that you made in that
C: Well, the starting point is the basic thesis that the Democrats felt that they had to
win the case with the State Supreme Court. From the moment that Sauls was
assigned to the case, the Democrats believed, rightly or wrongly, that this case
was not winnable at the trial court level. And so Boies crafted, with everyone's
[concurrence], but he was obviously the lead trial counsel. If David [Boies] was
the quarterback, Ron [Klain] was the coach. So, these issues were really
developed with him, but Boies' basic thesis was, [use as] few witnesses as
possible, [and as] few issues as possible. Avoid any factual issues if you can;
we've got to go up on a pure legal case.
P: Plus you requested an expedited trial.
C: [An] expedited trial, but at every turn the focus was the kind of case where you'd
have a record that the appeals court could reverse the trial court. So that means
the fewer witnesses, the better. Because the more factual development, the
more witnesses you had, the credibility issues a trial judge resolves, the less an
appeals court can do to reach a different outcome.
P: Why was there not an attempt to recuse Judge Sauls?
C: Well, I don't know that there was a legal basis to do it. You know, sometimes
when you read a judge, you don't necessarily read them in the sense that they
have any demonstrative bias. You simply have an assessment of their general
philosophy and even if you think that a judge's general philosophy is not going to
be favorable to the position you present, [it] doesn't mean you can recuse him.
P: In his decision, he argued that, and he did not count the votes that were brought
up to Tallahassee. The canvassing board had not abused their discretion and
that Gore had not proved a probability instead of a possibility. What was your
reaction to that legal decision?
C: Well, I think he was wrong. David Boies' basic theory is that when you present
an election contest, the ballots are the witnesses and the judge has to listen to all
the witnesses' testimony. That means the judge basically has to count the
ballots. There was some subtle disagreement with that on the Gore team. The
more traditional view of Florida lawyers is you can't simply admit ballots into
every election contest and make the judge count. There has to be a legal basis
to do that. And so in that sense, there was some disagreement with David's
legal theory. Ultimately, the record we had was sufficient to carry it either way.
And in the brief we made to the Supreme Court, we argued very specifically that
the evidence, including the evidence in Miami-Dade County, showed that there
was a sufficient prospect that it would change the outcome. But my view has
never been that simply by moving ballots in front of a judge guarantees that now
the judge has to do all the counting. I was struck by the fact the Supreme Court
of Florida very clearly understood that law and seized upon the Miami-Dade thing
as a specific result where the numbers were changing, where you did have
evidence in this record to show that there was a sufficient prospect that would
change the outcome.
P: As a matter of fact, in their four to three decision they demanded that the 9,000
undervotes that had not been counted were to be counted.
C: Exactly, but I emphasize that legally, Sauls may have been right about that, I
think that he was more consistent with the Florida law, but simply the record
showed [that] without more that it would have changed the outcome.
Interestingly, in the third district decision on the Miami-Dade Canvassing Board,
they actually provided a lot of support for that because they said basically, yeah,
there's a basis here for [a[ recount, [a] sufficient factual basis for recount, but
there isn't enough time and we think the state Supreme Court is the only one that
can affect the time. So, in effect, we already had a judicial finding with respect to
a major part of the recount that said this could effect the outcome of the election.
And one of the judges in particular, it may have been Justice Anstead, focused
on that. So, we had enough in the record and during the oral argument, David
got more into that point. He sort of worked over to the fact that, yeah, there is
enough here to show that would have sufficiently affected the outcome.
P: Were you surprised by the four three vote? Was it closer than you anticipated?
C: No, I didn't know how it was going to turn out. It was interesting, the night before
that argument, Boies talked about how it was hard to envision a state court that
had been under so much pressure, so many attacks, which they were. The
legislature was organizing and saying basically, we're going to take this out of
their hands. [The] media crossfire, the US Supreme Court, and the Eleventh
Circuit was taking shots at them. And so they were under siege, in a sense.
P: In fact, one of the arguments was, and I can't remember who made it, but Justice
Wells had a strong dissent and somebody mentioned to me that that may have
been to quell Tom Feeney [speaker of Florida House of Representatives, 2001-
present] and the house from putting pressure on the Supreme Court. In other
words, it was partly political.
C: I use Wells' position as an example of honorable lawyering by the Bush camp,
because Wells tried to posit the thesis that the state Supreme Court had no
jurisdiction to hear the case. And he asked Barry Richard [attorney for George
W. Bush in 2000 election] that, and to his credit, Barry... usually if a lawyer gets
fed a ball down the middle like that, he says, you are absolutely right, the state
Supreme Court has no jurisdiction... to me that would be a flatly invalid argument
on his case. Of course, the state Supreme Court has jurisdiction to hear a trial
by an inferior tribunal. And Barry answered very well. He said, yes, there is
jurisdiction, but it's a very limited jurisdiction. Oddly, the next day the Bush camp
overrode Barry and sent in their thing, [saying] oh no, there's no jurisdiction here
after all. They since filed some kind of supplemental writing to sort of nibble on
the invitation that Wells had given them. But I thought that was not a sound legal
position, and it makes sense more in the context of stepping back from the
legislative pressure. But I still use that anecdote to give a lot of credit to Barry
and to point out that I think keeping your credibility... because the other six
judges or justices have got to be kind of wondering what the heck Wells is talking
about.... Keeping your credibility is so important because at least Richard got a
total of three votes. Because he got three votes, it made it easier for the
Supreme Court to rule for him. I mean, if it had been a seven to zero decision,
it's tougher. But if you're the US Supreme Court, and these guys have won by
the narrowest of margins in the state Supreme Court, it makes it very easy for
you to pull the trigger.
P: If it's just a one vote margin.
C: Just a one vote margin.
P: Justice Wells said that he thought this decision would lead to a constitutional
crisis, do you think that was overstated?
C: Yes. I mean I think our Constitution is pretty clear that courts trump legislatures.
Somebody's got to say what the law is and it's not legislators.
P: Plus there's other recourses if it is not settled at the state level.
C: Sure, which as we discovered. But, what is the old story they say about Andrew
Jackson and Marshall? I guess yeah, the executive and the legislative can
always say that courts don't have the final say in the law, but hopefully most of us
in this country know better than that. To me it's very clear that the State
Supreme Court has the authority to say what's state law even if it overrides what
a state legislator thinks at the time. We're talking existing law, obviously
legislators can go back and change things. By the same token, the US Supreme
Court got the final say.
P: So Tom Feeney would have said, let them enforce it.
C: Great way to put it. Yeah, I think he would have cited Andrew Jackson and I
think that's right, let them enforce it.
P: Well, the issue is also brought with the 79-41 vote from the House, not the
Senate, that no matter what the Florida Supreme Court did, they were going to
seat Bush electors. Now that seems to me to be a dangerous precedent.
C: You know, I had such a mixture of feelings. I was so proud of the Florida
Supreme Court. They had guts and they were really smart. If you saw the oral
argument, I mean they were really really on. I'm talking about all of them. I
thought Wells' one argument was really untenable about the lack of jurisdiction of
the State Supreme Court to take an appeal from the state, a lower tribunal. In
balance, all seven of them made very good points. I thought, I'm proud to be a
Floridian as I watched this Court, because they are all presenting themselves as
terrific ambassadors for the fairness and wisdom and quality of people in this
state. And the legislature sent me the other direction, because I thought that was
P: It's also interesting that the Republicans, Jim Baker in particular, kept referring to
the Florida Supreme Court as the Dexter Douglass Court, a liberal court. But
they voted against Gore in Palm Beach, on Seminole County, on Martin County.
Five or six crucial issues, they voted against Gore. And the last vote is four -
three. That does not seem to reflect a partisan court, does it? [End of Tape A,
C: I think Secretary Baker may believe that, and that may have accounted for why,
from day one, their focus was getting to the US Supreme Court. So many times
you see the media and other people in public life referring to a court by who
appoints them. Well, [a] Reagan appointee, or this ruling which we think is kinda
liberal, [a] Clinton appointee. You know, once a judge is there, it's adios to
whoever appointed him. There really are so many examples of that in American
history, beginning with, I guess, the nine zero decision on Watergate telling
Richard Nixon to pound sand. I think that if you are a Florida lawyer and you
have been tracking the judicial history in election cases, everything the state
Supreme Court did was very, very consistent, even predictable. I don't think they
stepped out of line for a minute on what their own judicial traditions have been.
P: Plus, if you understand the circumstances, they had to make decisions on cases
that were going to take three or four months in two or three days.
C: Yeah, but they did a great job on getting caught up to speed. That's what I'm
saying. When I watched these oral arguments I was almost blown away by how
on top of it they were. They had knowledge on a lot of these legal issues that
surpassed that of the advocates in front of them.
P: What about the decision in the seven zero case to postpone the vote until
November 26th? The United States Supreme Court is going to say that that is
changing the law, making the law, not interpreting the law.
C: I didn't agree with that at all. I think courts are constantly doing things with
deadlines like that based upon statutory construction, but my gosh, no one's got
more power to move days and things around than a federal judge. When they
moved the election days for Hurricane Andrew, there wasn't anything in the
statutes that said you can do that. Federal judges did it and I'm glad they did, but
they changed elections. I don't think there's any lack of judicial authority to
address those kinds of things. Especially where you've got a very clear scheme
that says you're going to count the votes, and as anyone can construe, it's going
to take X amount of time to count votes. And even looking at the absentee ballot
cases, where the Supreme Court ruled against the Democratic side, if you look at
Beckstrom, they're pretty consistent with that too. I was not a fan of the
absentee ballot cases, even though my signature election case is an absentee
ballot case, just because you had no evidence that I could see, that the individual
will of the voter was not being accurately expressed and recorded.
P: You're talking mainly about Seminole and Martin Counties?
C: Yes. And there again, I think the Supreme Court of Florida was very consistent.
My input on that had been that if you don't have any evidence to show that it's
the wrong tally on the bottom line, I don't think the Florida courts are going to try
to undo anything. And so that's what was so different about this manual recount
thing. It really means that some people who sort of walked down there [to vote]
on election day, had their will erased. Whereas on the absentee ballots there
was no evidence that those folks' choices were not being, bottom line, accurately
tallied or counted.
P: Justice O'Connor, I don't know if this was a factor at all, was upset with the
Florida Supreme Court on the remand that they did not explain where that
November the 26th date came from. And it turns out later that the Florida
Supreme Court determined that Katherine Harris had held up the process by five
days. They just added five days to the count so that the canvassing boards
would have time to finish. In the arguments in Bush v. Gore, that comes up. The
Florida Supreme Court didn't satisfactorily respond to our remand.
C: I'm not saying anything fell in the cracks, but it's the one thing with everything
happening so quickly, I sometimes wonder if that was something they didn't get
around to doing as quickly. And it did make them look a little bad, when you
think of all the cases they had colliding on them it's understandable. I don't think
they meant to be disrespectful, for heaven's sake, to the Supreme Court, but I
honestly think that was a logistical glitch attributable to the crush of papers.
P: Another thing that intrigued me about the four three decision, they decided that
they would not count the fifty-one votes from Nassau County. You might recall
Nassau County did a machine count, and a hand count, and it reverted back to
the machine count. If you're counting votes by hand recount and you accept the
votes in Dade and Broward and Palm Beach County, why wouldn't you accept
the ones in Nassau County?
C: I agree with you in terms of consistency. The only thing I can say is, there's still
an appellate court and since Nassau came to them in a particular way, I think
what they were doing was they were looking at whether there was a sufficiency
of the evidence to support what the judge did. And frankly in Nassau, I thought
there was [evidence]. I sat there, I heard the explanations, I heard the evidence,
and I just think it's to that county, which again, has some different issues from
everything else. They, as a reviewing court, probably said, well, on this piece of
it we don't have a basis to undo what the judges did. There's sufficient evidence
P: Because the Canvassing Board made that decision.
C: [The] Canvassing Board made it and I really didn't get a sense that there was a
real, I mean, I understood why we raised Nassau because it looked so odd the
way it all came down. The on again, off again thing, but when you heard all the
explanations in court, you could see why Sanders reached the result on that one.
And again, a reviewing court finding that it had no real basis to reverse them.
P: Why do you think David Boies replaced Larry Tribe in the Bush v. Gore
presentation before the Supreme Court? The Republicans would argue that
when Gore was saying count all the votes, and then he was trying to focus on
four Democratic counties, and when we got to the military ballots he was
challenging those. And they claim that he was inconsistent.
C: I was never a part of the challenge on the military ballots, I'm not sure the
Democrats really made a big issue then. Remember, Gore went on television
and said, George W., let's just count all the ballots, all sixty-seven counties. Let's
just count everything, whatever it is. Let's get out of the courts. So in that sense,
he was pretty consistent philosophically. I don't know the details of the military
challenges except to say, that I know some of the Democrats thought there were
post-dated ballots coming in. In that sense there is some consistency between
count all the ballots that came in on time and don't count the ballots that came in
afterwards, so I don't know, but I really wasn't into that issue.
P: I talked with Mark Herron [Florida attorney, sent memo to Democratic election
canvassers instructing them on how to disqualify overseas ballots] who, as you
know was involved in this, and The New York Times did a study as well and there
were ballots submitted November the 18th and some didn't have signatures and
didn't have witnesses. Technically, they should not have been counted and the
number of votes is significant enough to win the election. So, it may have been,
again, General Schwartzkopf [Leader of Allied Forces in Gulf War], saying, "What
are you trying to do to our soldiers?" Even Mac Stipanovich said, "We were
waving the flag as hard as we could."
C: Well, that's understandable. That's understandable.
P: Talk about your reaction to the Bush v. Gore, five four decision.
C: Well, it was kind of a shock. I was in Sarasota. We'd all fanned out that previous
twenty-four hours to different counties to be involved, to be sort of sitting there at
the counting at the canvassing boards. I went to Sarasota.
P: As this recount is going on?
C: Yes, after it had been ordered by the [State] Supreme Court on Friday. They
were just kind of getting it going in Sarasota. They had some sort of issues in
getting everybody convened that Saturday. I was in a car when I got a call on a
cell phone from one of the people in Tallahassee and we were just completely
shocked. Sort of thunder struck that they jumped in, obviously they haven't even
asked from opposition papers from the Democrats. They simply got the
Republican papers and immediately granted a stay which was case dispositive
and wrote a concurrence which said, the case is over. So, from that standpoint it
was a pretty devastating thing for all of us. It irretrievably changed the
perspective most of us have had of the Supreme Court because it seemed to be
a very result oriented decision. And for baby-boomers who sort of grew up with a
sense that the Court was [a] very special, noble institution that had required [the]
elimination of barriers between people of different races and rights for even
accused criminals. You know, growing up in the legacy of the Warren Court, for
a lot of baby-boomers you always placed the US Supreme Court on [a] pedestal.
And to see this, to me, brazenly untenable decision granting a stay and excusing
the thesis of stay as being that they didn't want to cloud or embarrass George W.
Bush's inevitable victory by allowing vote counts to show that he really was
supposed to lose. That was the thesis of the irreparable harm for the stay.
P: Hard to prove irreparable harm for someone who's ahead, isn't it?
C: Yeah and again, the whole thesis of well, I don't want these vote counts to show
because they might show that he really lost and that's irreparable harm, clouding
his title. Basically [to] confirm that they were already awarding it to him. That
was, at least in my lifetime, a low point for the Supreme Court.
P: Excuse me, that was primarily Scalia that made that argument, right?
C: That made that argument, but there were five justices on board for that position,
although he wrote the concurrence. It would have been difficult to assume the
other four were at a great distance from his perspectives. At least he tried to
articulate a theory of the irreparable harm. In any event, [I went] back to Miami.
A lot of people worked feverishly through the night on the US Supreme Court
papers, but everyone was pretty realistic. The Supreme Court had just said
you're going to lose. But I think a number of us tried to contribute whatever we
could to the briefs that were being prepared. I spoke to Ron Klain [chief of staff
to Vice President Al Gore; head of legal operation for Al Gore in 2000 election]
some time during that night and early morning and maybe Mark Steinberg
[attorney for Al Gore in 2000 election]. Mark was very involved in a lot of the
writing too. No matter what, even if you'd just been sort of knocked out and are
lying on your back, as a lawyer you always get back up and do whatever you
can. So, that was the dynamic of the Democrats. Just to do whatever we
P: That brief was never filed with the Florida Supreme Court, correct?
C: Oh, no, that's a different brief. I'm talking about the US Supreme Court brief.
P: OK. But the Democrats did also...
C: Start on that, yes. You mean after the US Supreme Court decision, yes. That
effort began immediately, but that was never filed. So it was a very disheartening
number of hours from that moment until the Supreme Court finally, they basically
withdrew life support that Saturday afternoon, and then they just came out and
announced the technical fact of their decision.
P: How do you think David Boies did in his presentation? He said that it was a
catch twenty-two. He said, that no matter what they argued, they were going to
lose because they were going to either lose if you change the law and set a
standard, you are making a law. If you didn't, you would violate the Fourteenth
Amendment. So, he said that either way, he was certain that they were going to
C: Well, I don't think there was much thought that it was very winnable at that point.
Again, the Court had already ruled and by eliminating the counting of votes,
given the sense of timing, basically we'd run out of time. So, in that sense, I
would concur. He was there on the ground. You'd asked before about the
decision for Boies to argue it rather than Lawrence Tribe. My assumption is that
the decision was on very, very short notice that Boies [became] the lead lawyer.
It's a little bit like taking the date home that you brought to the dance. It had
really been David Boies' case through so many things. He'd argued to the State
Supreme Court. Obviously, Tribe is the foremost expert in his area, so I'm sure it
was a difficult choice.
P: Also, David Boies mentioned that you can always use the reasonable man
standard. If you're dealing with the assessment of voter intent, it's just like a
death penalty case. In Tennessee they might decide one thing and in Minnesota
they might decide something else and what's wrong with allowing canvassing
boards to go ahead and proceed on that basis?
C: Exactly. You get a jury instruction as to what is negligence. Sure it's subjective
and sure, county to county, you're going to get some differences in the way the
fact finders look at a particular set of facts, but you get the best guidance you can
in the form of a jury instruction. Again, I'm using that analogy in terms of
clarifying it. As I said before, there is far more subjectivity in absentee ballots,
which also were essentially insufficient in number in this case, to carry the day.
So, the system was always accepted that, what's the expression, politics is local?
Well, so [are] political election processes. Just sort of thinking back, some
counties use punch cards, some use the optical reads, one of them I think, had a
pure paper ballot. So, there's always been differences allowed up until the
Supreme Court decided otherwise. I don't think there was any real optimism on
the Democratic side once that stay was issued.
P: Abner Green, who was a Constitutional scholar, argued that if you carried the
logic of the Supreme Court to its ultimate conclusion, there would be one
standard in the United States. Everybody would have the same machine, or at
least one standard in every state.
C: Lets give everybody [a] two corner standard, if you can. I didn't see
constitutional scholars stand up and applaud. I don't think that decision will ever
be cited as a good equal protection case or as anything other that an aberration
and perhaps an example of result oriented decision making.
P: For example, Judge Richard Posner [Judge, 7th Circuit, U.S. Court of Appeals;
author of Breaking the Deadlock: The 2000 Election, the Constitution and the
Courts], in his book said, he thought it was a practical decision, but not a legal
decision. He's a pretty conservative judge.
C: Sure, I think that's fair. Do I think that the Court was one way or another just
going to get Bush in there? I don't think that would be fair, certainly not about all
five of the justices. I'm not a Supreme Court expert the way some are, but my
supposition is that the Court, like a fair number of American people thought that
this chad stuff was just too arbitrary or just silly.
P: Seven justices did have problems with that issue.
C: That's right, so even though there wasn't really a legal basis, I think, not so much
because of political reasons, but just sort of viscerally, they didn't like it. They
didn't want this sort of, loosey goosey chad stuff to override the machines. Even
though it was a state law matter, it was the President of the United States, by
gum and somebody's got to step up and decide this thing, and it should be us,
not these seven folks in Tallahassee.
P: Do you see December 12th as a safe harbor? Obviously, the U.S. Supreme
Court based its decision on that and said, we have no more time.
C: Yeah, I mean, probably not, but you know, you made a great point. When it all
began, I don't think most of us thought we'd get to December 12th. We just
thought the patience of the American people would wear out before then. I may
just be speaking for myself but I'm talking about the very clear sense I had of the
atmosphere, the chemistry in the air when this uphill battle began. So, I think
that, and it may have been Boies, I don't remember who articulated December
12th as sort of a drop dead date,
P: But then he changed his mind later and said that it's the 18th
C: And the reason really was probably at the time he said December 12th, no one
thought we'd get past December 5th. I think legally December 12th wasn't a final
date and there was more time.
P: Were you surprised that a Rehnquist Court made a decision based on the 14th
C: I thought that was pretty ironic. That so much new vitality was being brought into
the Fourteenth Amendment. That the federal need to override a state
prerogative was being trumpeted so resoundingly by previous advocates of state
P: Somebody, I forget who, said, well now I guess the Rehnquist Court is an activist
C: No, there are ironies. Of course, the ironies go both ways in a certain sense
because you certainly had a team of Democratic lawyers who I'm sure applauded
every Supreme Court decision that stood up for civil rights and ordered the
University of Alabama to desegregate, were certainly emblazoning the model of
state rights on our briefs. So, you sort of had dueling ironies.
P: The New York Times study indicated that particularly Duval County, where they
have a lot of military absentee ballots, that they counted the absentee ballots of
the military which were not legal votes. They did not count the ballots of African-
Americans and the concept was if they're too stupid not to vote correctly we're
not going to count it. Well, is not that a violation of the Fourteenth Amendment?
C: You know, I don't know the details of that. I've certainly heard a lot to indicate
that there were major questions about Duval County. I wish that the party would
have known, or whoever was gathering information. A lot of these things, I don't
think, were communicated or received in time.
P: And that's partly due to the extraordinary complexity of all of these issues. How
could you possibly know what each Canvassing Board was doing?
C: The complexity of the issues, the very compressed time frames. Again, I
emphasize the distraction of a lot of things that turned out to be non-issues.
P: One dissent by Justice Breyer, stated that there was still time to remand this
back to the Florida Supreme Court and have a count. Why do you suppose that
idea didn't carry the day at all? Was it a practical idea?
C: I think it was practical because what you're saying is, send it back to the
Supreme Court of Florida, straighten it out. How many days do you really need
to do a recount? If you've got enough staff, you could [get] it done. I think it
didn't carry the day because as you said, the US Supreme Court was ready to
call it a day. And made the practical decision, or practically oriented decision that
P: How did this experience affect your life, personally and professionally?
C: I've got to tell you, it's hard to think of an individual case experience that was/is
exciting as this. As you pointed out, on both sides you're working with some of
the best and most sincerely motivated lawyers in America. The conduct of the
lawyers on both sides was exemplary in terms of everything that lawyers are
supposed to do in terms of professionalism was manifested at the high ends,
again, on both sides. So, it was just a fabulous experience as a lawyer.
It obviously created some disruptions within my own law firm because one of my
partners at the time wanted to run for Mayor of Miami and has since become
Mayor of Miami. The Gore political candidacy was seen as an extension of the
Clinton administration which was discredited among some of Miami-Dade County
because of the Elian [ Elian Gonzalez -Cuban boy rescued off the coast of
Florida in 1999, returned to his father in Cuba in 2000 after being forcibly seized
from his relatives] controversy. So, from that standpoint, it resulted in a law firm
transition, but even that's worked out incredibly well. In every way, I have to say,
it was just a very positive experience and something I'll always treasure.
P: What kind of physical toll did it take on you?
C: Well, I'd never been away from my family that much. It's sort of unbelievable to
think that people would be consistently working sixteen, eighteen and twenty
hour days, but we all were. Part of it was caffeine, but a lot of it was adrenaline.
It was certainly exhausting, but something like that very rarely comes once in a
lifetime, and so whatever the professional distractions or the physical exhaustion
might have been as concerns were just overwhelmed, but frankly the privilege
and the excitement and the energy of being part of it. We're sort of in these
bunkers, Dexter had added some little area to his regular law firm. So we all had
very tiny offices. You're seeing a number of people who have very large offices
and very expensive buildings elsewhere crammed in with a bunch of other folks
inside. I mean there would be three our four people per office, in very small
offices, but it was a fabulous experience.
P: How will this situation impact Florida politics?
C: Well, that is a question that hasn't been fully answered. My sense is [that] the
answer is probably going to be not much and not as much as I might have
hoped. I had hoped to see, from the enormous energy and communication and
coming together of so many terrific people, something really good for the
Democratic party to build upon and I haven't really sensed that's happened. I
would have also hoped that there would have been a commitment to do some
good things for the state that would have grown out of all that. To some extent,
9-11 has changed everything. There were momentum at every level of social
and political and business life that either were diverted or dissipated temporarily
or just disappeared because of 9-11 being such an overwhelming tragedy. I
don't know if that's been part of it or not, but I have not seen anything significant.
Katherine Harris is happily running for Congress. I thought she behaved or
performed poorly as a public official. I did not think she was a source of pride to
P: In what specific sense?
C: I thought she allowed herself to emerge as an unmitigated partisan functionary,
rather than as Secretary of State. And yet, I don't see anything but positives for
her politically. I think it's almost a foregone conclusion that she's going to be
elected to Congress. I don't see any real changes in Florida.
P: Although none of her decisions technically, were against the law. She had the
authority to make all of those decisions.
C: Well, I guess I would dispute that a bit. I think taking the position, for example,
she wasn't going to count the Palm Beach votes two hours later. I think that's
P: So, her willingness to open Sunday at five instead of Monday morning, you would
say also was a partisan gesture. Because she could have waited till Monday
morning and the Palm Beach votes would have been counted.
C: All the things that rankled me that she did, that bothered me the most. Because
those folks were busting there tails to get it all done. And then to say, two hours
P: It's very interesting, I talked to Mac Stipanovich and they were in fact, telling her
to go ahead and wait till Monday morning because they understood the negative
response that decision would get.
C: It was just like she wasn't going to have any kind of moderation in what she did.
She was going to be one hundred percent the party line. Whatever could
possibly help, that was it. And I think, [Bob] Butterworth [Attorney General of
Florida, 1986-present; Executive Director, Florida Department of Highway Safety
and Motor Vehicles, 1982-1984] sort of tried to be more balanced. He's a
Democrat, there's no mistaking that, but I think he tried to take a relatively
balanced position on the absentee ballot issues and some things like that. So,
even though he was undeniably a Democrat [and] never stopped being one, I
thought he tried to be a little bit, do a little bit more to play it down the middle and
she didn't make the slightest effort. So anyway, but I'm using her as an example
just in a sense that I don't think, if you wanted to take who would have been
some of the more extreme figures in this drama in Florida, politically it'd be
Katherine Harris. And I don't think there's been any adverse consequences, she
seems headed for Washington. I don't think it's going to hurt Jeb Bush in the
slightest, if there ever was a concern. Bush, to his credit, stood back a little bit.
He didn't get in there, and if nothing else, give him credit for working, I'm sure he
was active behind the scenes, but he did not quite embroil himself in the
partisanship to the extent she did. So, I haven't seen any consequences. The
Democrats haven't even learned from the absentee ballot experience. To the
extent of now, trying to gear up their own absentee ballot machine. There's
some expression about people who forget nothing and learn nothing. I would
describe that as sort of the Democratic reality up till now. Maybe something will
P: Is there anything that we have not discussed that you would like to talk about?
Any anecdotes or events that are of great importance you'd like to relate?
C: I just want to tell you how much I enjoyed getting to know Al Gore from that thing.
In contrast to the leadership on the other side, where I think Jim Baker probably
did make the decisions. I think that Vice-President Gore and Senator Lieberman
made the decisions. He was a delight as a client. He was a smart client. He
was on top of things. I barely knew the guy before this thing, but that was a real
treat. And the other thing is for everybody who was involved as a lawyer of being
not just a part of history, but part of this sort of unique moment in the very heart
of American law. Everything that our system is about in one of its defining
moments and to have been a part of that is I guess the greatest pleasure and
privilege a lawyer can hope for.
P: Sort of a little bit of camaraderie, almost like being in battle.
C: Very much so. We spent many many hours in, I think of it as a bunker because
that office didn't have a lot of windows so it had a bunker look. It's something
pretty extraordinary when you share something like that. And even when you run
into lawyers from the other side, you shared it with them as well. So it's a good
feeling, and as I say, I'll run into some of these folks twenty years from now and
we'll always remember those extraordinary weeks.
P: Well, on that note, we'll end the interview.
[End of the interview.]