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Title: Interview with John McKay
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Permanent Link: http://ufdc.ufl.edu/UF00067388/00001
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Title: Interview with John McKay
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Language: English
Publication Date: October 3, 2002
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Funding: This text has been transcribed from an audio or video oral history. Digitization was funded by a gift from Caleb J. and Michele B. Grimes.
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Bibliographic ID: UF00067388
Volume ID: VID00001
Source Institution: Samuel Proctor Oral History Program, Department of History, University of Florida
Holding Location: This interview is part of the 'Florida Election Project' collection of interviews held by the Samuel Proctor Oral History Program of the Department of History at the University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: FEP 30

Table of Contents
    Copyright
        Copyright
    Abstract
        Abstract
    Interview
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
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COPYRIGHT NOTICE


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

Copyright, 2005, University of Florida.
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SAMUEL PROCTOR ORAL HISTORY PROGRAM at
the University of Florida









John McKay
FEP-30

John McKay begins the interview by offering his initial reaction to the 2000 election
(page 1). When the Florida Supreme Court called for a recount, McKay believed the
court was "rewriting the laws and in a sense usurping the authority of the
legislature"(page 1). When it appeared the legislature would become involved, McKay
recalls speaking with House Speaker, Tom Feeney. From these talks, they formed the
Join Legislative Oversight Committee on Electoral Clarification (page 2). McKay
stresses that the legislature became involved in hopes of keeping partisanship at bay
and ensuring the state's votes would count in the final electoral tally (pages 2-3). He
speaks about the Election Reform Act of 2001 and how the investigative committees
were formed following the 2000 election (pages 4-5). McKay did not have any contact
with Governor Jeb Bush or any operative from the Republican party during the
controversy (page 6). He recalls how the senate chose its legal counsel (page 7). He
offers his view of the establishment of the December 12 safe-harbor date and the
public's perception of legislative activism in the recount (page 8).

McKay speaks about his feelings regarding the need to call a special session of the
legislature (pages 9-10). He describes his reaction to the final Florida Supreme Court
decision (page 11). He mentions his strategy in preparing the senate to take action in
the event the Florida electors would not be ready to vote by the federal deadline (page
13). In the end, McKay was relieved that he did not have to bring the issue to a vote in
the senate (page 13). McKay speaks about the Supreme Court's decision in Bush v.
Gore (pages 14-15). He discusses the various strategies used by the Democrats and
Republicans during the recount (page 15). McKay critiques the Florida Supreme Court's
election-related decisions and the actions of Katherine Harris (page 16). He reacts to
his treatment in the national press (page 17). McKay completes the interview by
speaking about future election activities in the state following the passage of the
Election Reform Act (pages 18-21).









FEP 30
Interviewee: John McKay
Interviewer: Julian Pleasants
Date: October 3, 2002


P: This is Julian Pleasants. It's October 3, 2002. I'm in Tallahassee, Florida with
Senator John McKay. Senator, start out and give me your reaction to the initial
issues that came up during the [2000 presidential] election. How did you react
the day or two after the election was over? Did you anticipate at that point that
the legislature would get involved in this election?

M: Absolutely not. I don't think [anyone could have] anticipated, [what would] unfold
following election day. [It] was one unprecedented in my lifetime and, perhaps, in
anyone elses. [The legislature was only an] observer at that point. We certainly
were disappointed that there wasn't a conclusion to the election immediately
following election day. In fact, at that point, I wasn't even senate president, so it
was not my responsibility to start thinking about those things.

P: When did it become evident that the legislature was going to be involved?

M: Well, I was elected president [at] the organizational session, which followed the
election by two weeks. I think we started talking about the possibility of the
legislature's involvement somewhat earlier than that. I can't be specific with
regard to timetables because I just didn't take any notes. My chief of staff is here,
and he takes copious notes, so he might be able to refer to those and help us.
He was [also the] chief of staff for my predecessor.

P: One critical issue was when the Florida Supreme Court, on November 21st,
decided that there would be a hand recount, and they extended the certification
date to November 26th

M: Correct. I, of course, was very involved at that point, and I was quite displeased
with the supreme court's decision. I felt like it was quite arbitrary and
inappropriate.

P: As a matter of fact, you were quoted as saying that they, "were rewriting the laws
and in a sense usurping the authority of the legislature."

M: That's exactly what I believed then, and that's exactly what I believe today.

P: Do you know where they got this November 26th date?

M: I don't have any idea. In fact it seemed to be, as I've already said, quite arbitrary.
They could have picked the twenty-fifth, they could have picked the twenty-
fourth. There was never any hint as to a logical reason for the date they selected.









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Page 2

P: Now at this point, I guess you confer with Tom Feeney, who's the Speaker of the
House. At this juncture are you anticipating a special session of the legislature?

M: I [recall that] the possibility was becoming increasingly greater. My conversations
with Speaker Feeney were limited just because of the nature of the House being
at one end of the hall and the Senate being at [the other]. Most of the
conversations and the communications were undertaken by staff. At that point,
there was not a conviction on my part, or on the Senate's part, that there would
be a special session. In fact, there wasn't any [certainty] that there was going to
be a special session until the [day] before we actually called it.

P: You, with Speaker Feeney, set up what was originally called the Joint Legislative
Oversight Committee on Electoral Clarification, Fairness, and Accuracy.

M: That's a heck of a handle, did we [call it] that? Senator [Lisa] Carlton may have
come up with that name. (laughing) Let me see if I can set the stage for you. I
was very concerned, as we went down this path, that while I believed that my
motives were pure and that the senate's motives would be pure, that if we made
a mistake, inadvertently or purposefully, then someone in the future might use
our actions as precedent for less than pure reasons. Now, I realize that's very
arrogant of me to say that our motives were pure, others might view them
differently. But that possibility of arrogance aside, I wanted to make sure that we
did the right thing. I was not representing the Republicans [or Democrats]. I
wasn't representing George Bush. I wasn't representing Al Gore. I was trying to
represent all Floridians and uphold the oath that I took the day I was sworn as
President [of the senate]. We proceeded in a cautious, evaluating manner. The
reason we put together the committee was to [evaluate], in the complete light of
day in front of God and everybody, the situation that was in front of us. We also
tried to evaluate the options that were available to us should it be necessary for
the legislature to take action.

P: If I may quote from the organizing statement, "to investigate and ensure that
Florida voters would be included in the final nationwide election results." Now to
many Democrats, that seemed, out of the starting gate, to be partisan because
they would assume you were in the business of protecting the Republican
candidate for president of the United States.

M: Well, I think if they made that assumption, they would have to question my
honesty when I took the oath of office. Hopefully no one would do that, and
hopefully my actions conveyed to those that might question my motives that [I
was] sincere. I said publicly I was prepared, if it was appropriate, to cast my vote
for Al Gore, even though in the ballot box I cast my vote for George Bush,
because I thought that was my responsibility to Floridians. It was our view that,
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Page 3

because of the actions of the [Florida] Supreme Court, [that] the slate of electors
that [were] selected on November 7th [provided] the ballots that were counted on
November 14th [were certified].

P: Based on the certification.

M: Right. I lose some of these words sometimes, I apologize.

P: No, no.

M: Hop in anytime, I appreciate it. That [that slate of electors produced by the
reocunt ordered by the Florida Supreme Court] could be considered tainted, and
if they were tainted, it was our view that Congress didn't have to accept them.
We felt like that would be unfair to Floridians, and it would be a travesty not to
have Florida's twenty-five electoral votes counted. So we were prepared to go
into special session, if necessary, to selectt [a] slate of electors so that Florida's
twenty-five votes counted.

P: So your primary opposition was to the intervention of the Florida Supreme Court?

M: My primary opposition?

P: Yes, in other words, the thing that worried you about the overturning of the
certified vote would be through the auspices of the Supreme Court, not the public
decision. In other words, the Supreme Court would decide the election, as
opposed to either the people or the legislature.

M: My primary concern was to make sure that Florida's twenty-five electoral votes
were counted. If I remember correctly, the legislature is given the power to
decide how the electors are selected. In the event that the electors that were
certified on the 14th [of November] could be viewed as tainted, the most important
thing then would be, to the best of our ability, assure that an untainted group of
electors was presented to Congress so that Florida's votes could be counted.

P: One other issue that is spoken about, but I don't know if anything was ever done,
when this legislative oversight committee was appointed, there was some
discussion that they would deal with some electoral problems like the butterfly
ballot. Did the committee ever investigate in any of those categories?

M: I don't think they did at that time, but we did, subsequently in the [2001] regular
session, deal with that issue. In fact, we dealt with it in a way that was
unprecedented in Florida. Never before in Florida had the legislature provided
money to the counties for elections operations, for machines.









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Page 4


P: So you're talking about now the Election Reform Act of 2001?
M: Yes, Senator Carlton['s select committee wrote the bill that] that was sponsored
by Senator Constantine. I think Senator Constantine sponsored it, but its life
began at those committee meetings.

P: Okay, but the committee did not undertake to ascertain any voting irregularities
or anything like that.

M: No, that was not their responsibility. Their responsibility was to assess the
situation, compare and contrast the alternatives that were available to the
legislature, and then to make a recommendation.

P: Who decided on the membership of the committee? I think there were eight
Republicans and six Democrats?

M: I appointed the members from the senate, and Speaker Feeney appointed the
members from the House. The Senate is a much less partisan body than is the
house, which is primarily a function of the numbers in each body. [In the Senate]
we usually have representation on committees that is disproportionate to their
percentage in the [legislative] body. So there was a greater percentage, there
were more Democrats on that committee than in their proportional representation
in the entire body.

P: You did pick Lisa Carlton [Florida state senator, 1998-present; Florida state
representative, 1994-1998] and you picked Rod Smith [Florida state senator,
2000-present]. Rod Smith was very surprised that he'd been picked because he
had just been elected and had not yet served in the senate. I wonder why you
happened to have chosen him.

M: I could jokingly say it was because he's a good golfer, and I like to play golf with
him, and he is and I do, but it was evident from the very first time that I met Rod
that he was a very intelligent person. I thought he brought a wealth of experience
to the senate, and that his professional background as a state's attorney in
Alachua County, and whatever the rest of that district is, would benefit the
committee.

P: Was Lisa Carlton, in effect, the chairman of this committee.

M: She was the chair. There were probably co-chairs, in fact I've got a little
information right here.

P: Johnny Byrd was the other one?
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Page 5


M: They were co-chairs, so Senator Carlton was the chair for the Senate, if that's a
good way to explain it.
P: One other aspect of the situation I wanted to bring up is that you filed a friend of
the court brief in support of George W. Bush's appeal [of the Florida Supreme
Court's decision], which ultimately, of course, goes to the United States Supreme
Court. Was this for the [Florida] senate? Was this done on a personal level?

M: No, it's for the senate. My actions were always for the senate, not [as] an
individual.

P: Did the senate vote to file this?

M: No, the presiding officer of the senate has unilateral authority to make decisions
with regard to lawsuits and many other items.

P: I happen to have your brief here with me. It looks like, as we've already
discussed, the major issues were your concern that the Florida Supreme Court
would violate Article 2 of the U.S. Constitution, which is, the legislature has the
authority to make the laws. Then 3 U.S. 5, which, in essence, is the same sort of
idea, that the legislature makes electoral law and electoral law must be used as
the basis for the election. Did you, at this point, ever think of anything like the
Fourteenth Amendment, equal protection? Did that come in?

M: That was almost two years ago, I really couldn't recall.

P: This was done on behalf of the senate. Did the house do anything comparable?

M: Yes.

P: So, both of you had a friend of the court brief.

M: Right. Correct.

P: Once you get into the organization of this joint committee we'll call it, what
ultimately did they come up with? I understand recommendations for 2001, but in
the immediate sense, what was the outcome of the meetings of this committee?

M: [Again,] I haven't read that in a long time, but as I recall, they recommended the
calling of the special session. They offered a number of other recommendations,
courses we could [follow].

P: During this point, do you have any contact with Governor Jeb Bush [Florida
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Page 6

governor, 1999-present] or George W. Bush, then governor of Texas?

M: No. Never had any contact with anybody of the Republican party, the governor's
office, or the now-president's office, with one exception. Long before the
committee was constituted, I heard James Baker [U.S. Secretary of State, 1989-
1992; White House chief of staff, 1981-1985] was in town, and I'd always been
impressed with one of the statements he made when he was President Reagan's
chief of staff. So I wanted to go meet him, tell him I thought it was the best
statement I ever heard about politics.

P: What was it?

M: "You should never be impressed with the power you have, because the people
that didn't return your calls before you got there [in office] won't return them after
you leave."

P: Did you talk with any of the lawyers, like Joe Klock [attorney for Katherine Harris
during 2000 election] or Donna Blanton [attorney for Katherine Harris during
2000 election]?

M: No, we stayed completely away from that. As president of the senate, I felt like
my primary responsibility was to the people of the state of Florida, all the people
of the state of Florida. I was not going to venture into any conversations or any
activity that might be viewed as partisan.

P: At some point you would have had to have talked to Governor Bush about calling
a special session.

M: No, sir.

P: Never did?

M: No. Under the Constitution, the governor can call a special session or the
presiding officers of each chamber can [jointly] call a special session. The
governor was not ever involved in the process.

P: Although publicly he said he would be in favor of it.

M: I didn't remember that. I've never had a conversation with him, in fact, probably
to this day, I don't believe we've ever had any significant conversations about the
events of November 2000.

P: When the legislative session was called, he did call it "an act of courage."
6









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Page 7


M: Your recollection is better than mine.

P: Well, I've gotten that out of a newspaper. (laughing) Doing a little research. Now,
there was some discussion in the oversight committee about the lawyers chosen
by Tom Feeney [Florida state representative, 1996-present, 1990-1994; Speaker
of the Florida House of Representatives, 2001-present]. One person that was
controversial was Roger Magnuson [Dean of Oak Brook College of Law in
Fresno, California].

M: No, he was senate counsel, not house counsel.

P: He was the senate counsel. I'm sorry.

M: One of the challenges in finding legal counsel was that just about everybody was
conflicted out. Just to pick a law firm's name that we're all familiar with, we
couldn't use Holland and Knight because Holland and Knight, again, I'm just
making this up to illustrate, had a gentleman in their Los Angeles office that was
working for the Gore campaign and a gentleman in the Washington office that
was working for the Bush campaign. It seemed like every major law firm in the
country that we contacted had to disqualify themselves because of some either
active or peripheral involvement with either the Gore camp or the Bush camp.

P: For example, Steel Hector was working for Katherine Harris, as was Joe Klock.

M: Okay. So we searched far and wide. Quite honestly, we were lucky to find
competent counsel that was not [conflicted out]. There were questions that were
raised about Mr. Magnuson's background and his area of expertise, [but] the
specifics of those I don't recall. I never listened to all the committee meetings, I
just waited for the report because I didn't want to be [influenced] by political
rhetoric. I thought [it was] unnecessary. He [had] impressive credentials.

P: I know Lois Frankel protested that Magnuson was the dean of an unaccredited
law school, and that he was partisan in his presentation.

M: If you go back and look at all the TV interviews, I think you'll find that very few
times were there senate members on TV, either Democrats or Republicans. I
made specific requests of all the members, [for] some of them [I] had to make
[the request] a couple times, for them to stay off of the airwaves. My effort to do
that was so that we didn't have hard feelings that might impede our ability, in the
future, to work on issues that are, quite honestly, much more important to
Floridians than who the president is. I think if you examine those tapes, you'll see
a lot of house members were on those TV programs.
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P: But not senators.

M: There were a few, but they were the exception, not the rule, and I never was on
one.

P: What is your view of the so-called December 12th safe harbor date?

M: Our view was somewhat, as I recall, a little bit different than that of the house. In
our early discussions, which were conducted by staff and also by some of the
senators and house members, we felt there had to be finality reached with regard
to all the lawsuits by the 12th [December] in order to determine the appropriate
slate of electors. If finality was not reached by the 12th, it was then the
responsibility of the legislature to select a slate of electors.

P: The so-called safe harbor issue is: as long as the delegates/electors had been
selected by that date, then they're guaranteed. If not, they have to be in by
December 18th Your concern was, if there had not been some sort of finality in
the certifying of the votes, the legislature would have to seat to electors.

M: Exactly.

P: Do you see the legislature as having the constitutional authority to do that? Let's
just say that there had been a recount, and Gore had come out ahead in the
popular vote in Florida. What then would have been the action of the legislature?

M: If the lawsuits had been resolved, and through whatever method or procedure
Gore was declared the winner in Florida, then the legislature would have done
whatever it had to do. Nothing may have been necessary, but if we had to step
up, we would have voted a slate of electors for Gore. Or I would have voted for
that because I publicly said that while I voted as an individual for George Bush, I
was going to stand up and uphold the constitution. I was prepared to vote for Al
Gore just as I was prepared to vote for George Bush.

P: So your major concern is that the twenty-five electoral votes of Florida would be
counted.

M: Absolutely. Whoever got those votes was immaterial.

P: One of the issues, of course very partisan as you know better than anybody else,
was that the Democrats, for instance in the New York Times, were criticizing this
as a partisan political move. That all of this was orchestrated by the Bush family.
How do you persuade the public that this is a constitutional issue rather than a
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Page 9

political issue?

M: Well, I attempted to persuade the public through my public comments to point out
what our responsibility was. I stand by all those comments that I made
previously. I doubt if there are very many people in the state of Florida that
subscribe to the New York Times, and I wasn't really concerned about the New
York Times, or any other newspaper, or any other media source. I took an oath,
and I was going to uphold the oath to the best of my ability.

P: So you felt no particular pressure by being in the middle of this goldfish bowl?

M: Believe me there was a whole lot of pressure. It was something I never
anticipated being involved in, and I'm sure Speaker Feeney didn't anticipate ever
being involved in this either. Probably, very few people in the history of our
country have contemplated this. The pressure was in making sure that to the
best of your ability you made the right decisions [it was not partisan political
pressure]. You might not make the right decisions, [and] you would only know
whether you [did] or [did] not after the fact. So before you make the decision,
you've got to lay all the ground work. You've got to do all the research. You've
got to put yourself in a position where you can use your very best judgement,
because we were potentially selecting the president of the United States. What's
going on right now in our country, with regard to the mid-East, terrorism, and
Iraq, just underscores the gravity of the decision that we were having to make, or
we could potentially make. Of course, we didn't have to make it.

P: Now you and Speaker Feeney held a joint news conference to announce a
special legislative session.

M: Correct.

P: Did both of you agree on that? Did you have a specific goal in mind when you set
the date? I believe it was Friday, December 8th, when the session would be held.

M: Yes, that's when the session was convened. Let me back up. Your first question
is did we confer. I did not make a decision that we ought to go in special session
until the night before that press conference. At that point, I'd reviewed everything,
I'd talked to enough members of the Senate, I'd talked to staff, I'd talked to legal
counsel, and as president of the senate, I decided that a special session was
appropriate. I don't remember what day we had the press conference, but after
you decide that a special session is appropriate, what one does is work
backwards. You start with the day you have to make your decision, and then you
decide how much time will be necessary for committee meetings and so forth
and so on. I did not think it was appropriate for us to meet on either the Christian
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or the Jewish Sabbath, and those two days, in addition, backed us up to a
convening date of December 8.

P: Were you reluctant to agree to call a special session?

M: "Reluctant" would not be the proper word today. I think the proper word was that I
was very cautious in deciding whether we ought to have a special session. It was
not something that I looked forward to with relish because of the potential future
implications of the legislature going into special session [for this purpose]. It was
completely unprecedented. We were charting a new course. So I was very
cautious.

P: Wasn't Speaker Feeney much more enthusiastic, as it were, about calling a
special session?

M: As I recall, Tom was more enthusiastic about that. But I think in fairness to
Speaker Feeney, you need to ask him that.

P: Did you all get along well in this particular activity, calling the joint session and
setting up its purposes? I know that, for example, the House voted, but the
senate did not vote.

M: No, we did not. The resolution began in the House, Julian, because it was the
House's position that the legislature had to act by the 12th [of December]. It was
the Senate's position that we could not commence to act, we didn't have the
authority to do so, until the 12th The 12th was the finality date. We had to act by
the 18th [of December]. So the House had a different perspective of the issue
than we did.

P: The House vote, one of the figures I have is seventy-seven to forty-three, which
is pretty much along party lines. I think two Democrats may have voted with Tom
Feeney. Would you have had the same sort of breakdown in the senate if you
had voted?

M: That would be speculation, and as I've said many times, I quit speculating after
my bet on the Florida State versus Oklahoma championship football game in the
Orange Bowl. And I never polled any of the members. We have very few times,
during my two years as president of the senate, polled the members on a vote
prior to the vote occurring. It isn't done.

P: Well, if I may, I wanted to convey to you what Senator Rod Smith, a Democrat,
said. He said when the concept first was presented, he was concerned about the
partisan nature of it. He thought, at least from the house side, that may be the
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case. But he said that once he had contacted you, and he said he wrote you a
letter stating what he thought ought to be done during this session....

M: It was a very good letter.

P: He said in the end, he had a great deal of confidence in your handling it without
being partisan. He said that he had heard from you privately that the world would
not come to an end if Al Gore were elected president.

M: Well, the world wouldn't come to an end. (laughing) At least I hope not.

P: One of the individuals who testified was a lawyer, I'm sure you know Tom Julin.

M: I didn't. But as I've said earlier, I didn't listen to any, or very little of the committee
meetings, and I don't recall his name.

P: What was your ultimate reaction to the four-three Florida Supreme Court
decision? This is the decision that counts the votes in Palm Beach and counts
the votes in Broward and Dade.

M: That's the second decision.

P: [The] second decision, which in effect continues the recount, and all the
undervotes will be counted.

M: I was more pleased than when it was a seven-zero vote. I quite honestly was
surprised by the four-three. I thought that, given the intervening decision from the
U.S. Supreme Court, we would have had a different opinion of the Florida
Supreme Court the second time. So, I was surprised that it came back four-three.

P: Were you surprised that it was a close vote?

M: I was surprised (1.) that it was a close vote, and (2.) I'm surprised that it was
four-three in favor of the continuing count. I thought that was an error. I thought
the first decision of the Florida Supreme Court was an error, and they just
compounded it.

P: Were you shocked when they made that decision?

M: I was quite surprised. I really expected that, given the intervening decision by the
U.S. Supreme Court, the Florida Supreme Court would, in essence, from [my
non-legal] point of view, reverse its earlier position.


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Page 12

P: This was when the U.S. Supreme Court issued a stay by a five to four vote.
Some of the members of the U.S. Supreme Court complained that the Florida
Supreme Court never really addressed some of their concerns. One of the
concerns, as you know, was the different method of ascertaining votes during a
recount. That Broward had a different standard and Palm Beach had a different
standard. Was that an issue for you as well?

M: I hesitate to comment because I really don't recall the specifics of the cases at
this time, and I haven't reviewed them in an awful long time. What I do recall is
that I felt, once again, the Florida Supreme Court was proceeding in an incorrect
fashion.

P: Once that decision comes down, had you already decided for a special session?

M: No, I didn't decide. When did we have the press conference? [Interviewee is
asking a third party present during the interview].

Third party: I think it was Thursday.

P: Yes, that would be the seventh.

Third party: That would be the Thursday before the Friday.

M: When did the Supreme Court's decision come down?

P: December 8th

M: This Supreme Court?

P: Yes. The second decision, four-three decision.

M: I decided on the night. We called and had the press conference on the 7th [of
December]? [Interviewee is asking a third party present during the interview.]

Third party: I think so.

M: If we had the press conference on the 7th, I decided on [either] the night of the
5th [or the morning of the 6th].

P: That's what I'm trying to make clear. The Florida Supreme Court announced that
at four o'clock on the 8th. Were you already in session?

M: We convened the special session at noon on the 8th
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P: So, that information would have been conveyed to you while you were on the
floor of the senate?

M: No. I think an organizational session probably [took] only take a half an hour or
an hour. So, probably, if I was even in town, and I might have gone back to
Bradenton, it was conveyed the way the rest of the world got it, probably on the
television set.

P: What about the reaction of the Senate? Was there now a demand that the
Senate take a vote, that they act?
M: No. And the Senate never took a vote.

P: Was that your decision?

M: Yes. Remember, I said that my position as president of the Senate was the
Senate did not have the authority to act until the 12th

P: So, it was not a constitutional issue?

M: We were putting ourselves, by convening on the 8th, in a position to take action
should finality not be reached by the twelfth. We would have taken whatever
action [was necessary] by the 18th

P: I'm glad you pointed that out because that's not been very clear in all the books
and reports I've read. So, the issue is not, at this point, a constitutional issue per
se, you are waiting until....

M: I'm waiting 'til the 12th. Now, remember I said that when you decide you're going
to call a special session, whether its on this subject or any other subject, you
work backwards. You say, okay, I have to make a decision by X day. How many
days will it take me to get in a procedural position so that I can take a vote on X
day? In order to put ourselves in a position to take a vote on the 18th, we had to
convene on the 8th because I was not willing to have the [Senate] meet on either
the Jewish or Christian Sabbath.

P: In retrospect, are you glad you were not placed in a position to take a vote?

M: Oh, absolutely. I think it was good for the republic that we did not have to take a
vote. I think it, potentially, would have been a bad precedent for us to take a vote.
Not because we would have done the wrong thing, because I'm convinced we
would not have done the wrong thing, we would have done the right thing to the
best of our ability. My concern, as I stated earlier, was that, at some future time,
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twenty years hence, a 100 years hence, there could be another close election in
another state. [Without] waiting for all the facts to filter in, a legislature in another
state could be motivated solely by partisan reason, could jump in and decide the
outcome of the election of the President of the United States. My caution was to
not give that opportunity unless we had to. I wasn't afraid to do it, but I thought it
was the last thing we needed to do.

P: Would you have seen all of this, as Justice Wells wrote in his dissent to that four-
three Supreme Court decision....

M: Charlie was one of them that was coming around.

P: (laughing) He saw this, even at that juncture, as a constitutional crisis. Would you
agree with that?

M: I did not read Charlie's opinion and I'm not an attorney nor obviously then not a
constitutional attorney, but I thought that there was that potential. However, I
don't think we had a constitutional crisis. I think what we had was a constitutional
affirmation. Somebody wrote a document over 200 years ago, before we had
computers and before we had all this other high tech stuff, before we had
electricity, that [the Constitution] worked. It was amazing that it worked, and it
was gratifying that it worked. It was humbling to be a part of that process.

P: Would you comment on the five-four Bush v. Gore U.S. Supreme Court decision?
A lot of legal experts were surprised, for example, that the Rehnquist court,
considered to be a conservative, non-activist court, would make a decision based
on the Fourteenth Amendment, equal protection under the law. Were you
surprised at the constitutional decision made by the Rehnquist court?

M: No, I wasn't. I wasn't surprised [and] I was pleased. I thought as with any contest,
whether it's an election or whether it's a football game, you have to play by the
rules that are in place at the beginning of the game. I think, at some point, there's
a final gun to [end] that game. I thought the final gun should have been on
November 14th. I think any extension of the recounting was a mistake because
we could [theoretically] still be counting those ballots today. We could still be
interpreting chads, pregnant chads or whatever they are, today. It could have
gone on ad infinitum. Then there could have been someone to come along and
say," Well, let's recount the recount, and let's reinterpret the pregnant chads." It
could just have gone on and on and on. I felt that was a mistake. I thought that
was a mistake not only for Florida, I thought that was a mistake for the entire
country. I thought that we ought to, although everyone in electoral process is not
always honorable, assume that they're honorable. You ought to verify as much
as you can, but then you ought to trust people, too, that they're counting the
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ballots honestly. [And then you should end the count according to a
predetermined schedule.]

P: Judge Richard Posner [Judge, 17th Circuit, U.S. Court of Appeals; author of
Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts] said
the Democrats had confused tabulation error with voter error. That the machines
had not malfunctioned. There was no fraud that we know about, and if people
vote incorrectly, then, by law their vote does not count.

M: Well, I would agree with that. I think [everyone has] a responsibility to be an
informed voter. Informed means more than being informed on the issues, it
means being informed as to how to cast a ballot. I attempted, and I think I
successfully stayed away from partisanship or the emotions surrounding the
comments about voter error or miscounts because that wasn't my role. But, as a
citizen, it seemed rather ludicrous when you would hear reports of a voter
standing up in county X saying, "I know that my vote that I cast for Gore was not
counted." How the hell would they know whether their vote was counted or not?
There was a hysteria that was just snowballing, which [was], in recollection, one
of the other reasons I thought this whole process, this contest, should be brought
to an end. But it was not a contest, from the Senate's perspective, of two
protagonists. It was about exercising our constitutional responsibility as the
Senate.

[End of side Al]

P: One of the things I discovered that was interesting, in Palm Beach County, with
the so-called butterfly ballot, 96 percent of the voters voted correctly. There was
a 4 percent voter error. In a large county that's a lot of votes, but it would seem
from a statistic like that, if 96 percent vote correctly, then the butterfly ballot might
not have been such a difficult process. Clearly, it was not the best possible way
to vote because of the way that ballot was designed. But nonetheless, if the
overwhelming majority of the people had no difficulty with it, one wonders that the
person you talked about [off the record], when she says, "I don't think my vote
was counted," she probably voted incorrectly.

M: And her vote, that person's vote, may have been counted. It's impossible to
ascertain whether one's vote was counted correctly or not. In any mass exercise,
and voting is a mass exercise, there are going to be errors. The legislature has
appropriated a significant amount of money for the complete purchase of voting
machines. In the recent Democratic primary, it appears that there were votes that
were not counted using state of the art technology. From that, I think it's fair to
conclude there's always going to be some human error in the voting process.


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P: Let me quote Judge Richard Posner again. He said about the five-four U.S.
Supreme Court decision, "It was not a sound constitutional decision, but it was a
pragmatic decision." Part of his argument is that you could not allow this chaotic
recounting to go on and on. That ultimately there had to be a decision, and the
decision is made by the United States Supreme Court, which is obviously the last
court of appeal. Would you agree with that? Does that sound logical?

M: That's pretty much what I've already said. Except I thought it should have been
cut off a lot earlier. Not because Bush was ahead or Gore was ahead, but at
some point you have to stop the exercise.

P: The Democrats and others are going to take this as a partisan political decision.
Do you think it hurt the credibility of the U.S. Supreme Court?

M: No, not a bit. I think [generally, that] people around here were pleased that the
process ended.

P: Justice Ginsberg and Breyer and others had very strong dissenting opinions. All
of them thought that the U.S. Supreme Court shouldn't even have taken on the
case, that this was, in fact, a state issue that should have been decided at the
state level. How would you react to that argument?

M: I thought it was inappropriate for the Florida Supreme Court to issue their first
ruling. Had they not issued that ruling, there would have been finality brought to
this process on the date of certification. I thought regardless of who was the
victor, and a Democratic member of the state Senate you quoted, Rod Smith,
said that, "I John McKay, said the world wouldn't come to an end if Al Gore was
elected president [Incomplete sentence]." So, my position then and my position
now is not a partisan position. I just think that at some point there has to be a
deadline. There's a deadline for just about everything else in life, and there ought
to be a deadline set in advance for the counting of ballots.

P: How would you evaluate the performance of Katherine Harris as Secretary of
State?

M: I don't think that Katherine Harris did anything more or anything less than she
was supposed to. I felt like her position was purely ministerial. [I believe that] she
[followed] the laws of the state of Florida. I'm not one to put Secretary Harris on a
pedestal and say she saved the republic or she's the heroine of the Republican
party, as I've frequently been quoted similarly. But I don't think the criticism of her
was at all fair. I still feel that the caricature comments made were wholly
inappropriate, and the folks that made those ought to be ashamed of themselves.


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P: I talked to Mac Stipanovich [Republican strategist; chief of staff for Governor Bob
Martinez, 1986] and the fact that the Supreme Court offered her the option of
stopping the recount process at 5 p.m. Sunday, or 9 a.m. on Monday, was an
issue. The Palm Beach vote didn't get in by five o'clock [Sunday]. A lot of people
accused her, at that juncture, of being partisan. Mac had in fact advised her to
wait till Monday, but legally she had the option because the court said she could
do it five o'clock Sunday. Having read her book recently, she argues that it would
have been better to get it done ahead of time because they were trying to get the
certification, and that would give her an extra day. Which seems fairly logical to
me.

M: I don't recall the time frame, so I can't really comment.

P: How would you say that you were treated by the national press and media, and
how would you evaluate their treatment of the state?
M: I can't comment on how I felt like I was treated because I never paid any
attention to it. Until just a month ago I owned a small house here, and somehow
the national media found where it was even though my number is [not] listed in
the phone book. They were leaving cards there saying [please appear] on this TV
program or that TV program, but I didn't figure any of them really wanted to make
me a lifelong friend or have tea on every Tuesday [so I didn't accept any
invitations]. I didn't want to add fuel to the partisan fire that the media was trying
to generate. I thought that was bad for Florida, I thought that was bad for
Floridians, and I thought that was bad for the country. I thought it was a time for
sober decision making, not partisan inflammatory rhetoric.

I thought that the overall treatment of the media of the state of Florida was
reasonably fair. There were some screw ups. There were some screw ups in
Broward, Palm Beach, Seminole, and Dade County, [and other places]. So, [the
criticism] didn't really bother me, but then I didn't pay a whole lot of attention to it.
My job was not to worry about the Republicans. My job was not to worry about
the Democrats. My job was not to worry about the media. My job was to perform
consistently with the oath that I took the day I was sworn in as president [of the
state senate], and that's what I was trying to do. The rest of it was unimportant.

Let me add one thing. The most favorable statement that I recall about the
actions of the senate, and I think it's more than John McKay, I think it's the
Senate as a whole, came to me six months ago. I'm in the real estate business,
and I was meeting with a tenant, a gentleman that I've known for twenty years or
so. [I was] talking to him about leasing some more space from me. It was strictly
a business exercise. He's president of a bank down in Sarasota. Now this is six
months ago or maybe nine months ago, so over a year after this election. As he's
leaving he said, "By the way John, I felt the Senate did the right thing with regard
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to the election." I hadn't thought about that election in forever. But if a constituent,
somebody I think that I represent, who is, I'm sure a Republican and someone
who I respect, not just because he pays me rent, tells me a year later that we did
the right thing, that was enough endorsement for me.

P: Let's talk a little bit about something we mentioned earlier, the Election Reform
Act of 2001. Why didn't that bill set up a uniform voting machine for the entire
state?

M: Because some counties, such as the one I live in, Manatee County, had already
purchased the optical scanner voting machines, which worked very well in
Manatee County. It worked very well in the 2000 election. [It] just worked very
well in the 2002 primary. A number of counties that we discussed this issue with
said they wanted to get state of the art terminals, that they wanted to go to the
video screens. Since the legislature had never been involved previously with
deciding the method of voting on the county level, we were somewhat reluctant
to get involved at all [let alone dictate a single course]. This is the first election
where there's ever been this kind of problem. So, if we were going to get
involved, we were going to make sure that we did it in a way that was most
amicable to all sixty-seven counties. Manatee County, again using my home
county as an example, did not want to go to the video machines. They were
happy with the optical.

P: Which are very expensive.

M: They are very expensive. So, we said everybody can pick what they want. We're
not going to have any more chads, but you can go to video, you can go to optical,
and there are probably some other varieties, too.

P: So, all punch card machines are gone?

M: All punch cards were gone. I still think, personally I think, the optical are better
than the video. But that's my personal preference.

P: I think you're right. Because I've talked to most of the election supervisors, and if
they're precinct-based, if they make a mistake, it spits it back out. They can
correct it immediately.

M: Well, in fact that happened this year when I was voting. Someone right next to
me made a mistake and [the voting machine] spit it out. So, it worked pretty darn
well.

P: And there were quite a few problems with the new machines. In Palm Beach
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County again.

M: There were. My personal opinion is the video ones are a little too complex [for
some people].

P: Plus if the power goes down or like any computer, if you have problems with it,
it's hard to sort it out. Also part of the reform act was the provisional ballot. Did
you think that was....

M: I think that's fine. Sure, it's sort of like the instant replays on pro football games. I
play golf [and] I think golf is an honorable sport. If you don't know if you can find
your ball after you hit it, you [can] hit a provisional one. If you get up there and
[find the first ball], you pick the provisional one up and [play the original ball].

P: What about the felon list? Did the Senate try to deal with that at all?

M: [There are Senators concerned about this], but not too many. In fact there was
debate on the floor. I think Senator Jones and Senator Kendrick Meek spoke up
about that the most. But they weren't persuasive enough to [convince] the whole
Senate. I think that, while I certainly don't want to minimize the loss of anyone's
right to vote, that certainly was not the crux of the issues that were in front of us.
That was not a major point.

P: What about voter education?

M: We provided money in our 2000-2001 budget for voter education, as we did for
voting machines. First time that the state of Florida's ever provided money [for
that purpose].

P: Do you think, based on the recent elections, that the voting process in Florida
has been dramatically improved by the 2001 Electoral Reform Bill?

M: My father, who's now passed away, was involved in politics in Tampa in the
1920s and 1930s.

P: I know about that.

M: He [told] me stories about voting activities. So, I think when you compare today
with the voting problems then, [for example,] we'll call repeaters, and [taking]
names off of headstones, and stuffing ballot boxes [we have made great
improvements]. I'm reading right now Lyndon Johnson, Master of the Senate.

P: Lyndon Johnson was very good at getting extra votes.
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M: He was darn good. You read about the voting outcomes of precincts, particularly
in southwest Texas. And when you recall the stories of Chicago in 1960,
Kennedy-Nixon, I think that perhaps the problems we have in Florida, not to
minimize them, but they might pale in comparison. There were 2 counties that
had problems in the recent primary. That means 65 counties got it right. I think
these are local problems more than a state problem.

P: Also it should be pointed out, for example, that in 2000, Georgia had many more
over- votes and undervotes than Florida did.

M: I wasn't aware of that.

P: Yes. I mean there were problems. There were a lot of these vote-a-matic
machines all over the country. So, other states had problems, they just weren't in
the national limelight. What about the ending of the second primary that was part
of this bill?

M: There were two reasons for doing that. One reason is because Florida's budget
is very tight. [There are] lots of challenges. The demands on Florida's budget are
virtually insatiable. The demands of Floridians are virtually insatiable. They're
[almost] infinite. We were struggling with a way to pay for the voting machines.
One way to pay for them was to eliminate the second primary. That was how the
idea first came up. Second, we said, "Is it time to end the second primary or the
runoff in Florida, because most states don't have it?" We concluded that that was
appropriate. Florida is no longer a one party state as it was when the runoff was
first instituted. Then it was all a Democratic state and Republicans were virtually
unheard of. It wouldn't have mattered if it was the other way around, it was still a
one party state. The winner of the election was usually decided in the runoff, but
that's no longer the case. So, it was appropriate to end it.

P: But this is just for two years, so it's an experiment?

M: Well, [there are] two years to find out [if the elimination works]. Two years for
[two] reasons. One, to find out if it really works, [to] see if there are any problems
with it. [Two,] because we're ending a practice that has been going on for as long
as I've been aware of Florida politics. [Also,] two years, one election cycle, was
all that was necessary to come up with $30,000,000 to pay for the voting
machines.

P: The Democrats said you did that so that the Democrats would nominate Janet
Reno, and Janet Reno would lose to Jeb Bush. (laughing)


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M: To the best of my recollection, Janet Reno was not on anybody's radar screen at
that point with regard to the gubernatorial contest. Probably, Rod Smith was one
of the Senators in my office when this decision was made. Rod is a Democrat, as
you know, and you can ask Rod if that ever came up, and he'll tell you it didn't.

P: One other issue about the end of the second primary. Was there ever any
discussion in the legislature for doing one of these systems like they have, I think
in Oregon, where you have your first choice, second choice, so that....

M: There might have been some discussion, but I think that's all it was, discussion.

P: Do you think that this will be a successful concept, that we will not have the
runoff reinstated?

M: Well, that's purely speculation, and as I've said earlier, I quit speculating after
Florida State lost to Oklahoma. But I think that the time for the runoff in Florida is
over. In addition to what I've already said, I think it should be over because,
unfortunately, fewer and fewer people in our society are exercising their
constitutional privilege, and perhaps more important their responsibility, to go
vote. Therefore, a minority of citizens are electing our officials. In a runoff, even a
fewer number of people vote. I think for a small minority to make the decisions for
all of us is not wise, and so eliminating the runoff [helps] to avoid that problem.

P: I can tell you the election supervisors are pleased because it's always difficult for
them to prepare the new ballots for the runoff, and particularly if you are in a
highly populated county.

M: Well, my recollection is that they were very supportive of this, but their support
was not a major ingredient in the decision making.

P: Is there anything that we have not talked about or I haven't asked you or I
haven't brought up that you would like to state or discuss?

M: Well, I don't know. What I'm going to say now is speculation on my part. I have
absolutely no proof of this. It's my gut reaction, and as I get older my gut gets
bigger so maybe it gets more reliable. I think that the actions of the Florida
legislature, although we did not take a vote on a slate of electors, influenced the
decision of the U.S. Supreme Court. I think the U.S. Supreme Court did not want
the legislature to be involved. I think they perceived, as we in the Senate
perceived, that our action could be setting a dangerous precedent. It was
important for [Florida's electoral] votes to be counted, and we were therefore
willing to select a slate of electors. [It didn't] matter again whether it was Gore or
Bush, we were willing to select a slate of electors. I don't think the U.S. Supreme
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Court wanted us to do that.

P: That's interesting, for of course they read newspapers or watch television as well.
There's no question, from the information I've gleaned, that they were well aware
of all of the activities going on in the state of Florida. There is some sense that it
was potentially getting out of hand. Justice Antonin Scalia talks about, very
specifically, a constitutional crisis.

M: Does he?

P: That as precise as he could be, and I don't know if that's specifically to your
point, but in the generic sense, [with] all these different recounts, the Florida
Supreme Court had fifty some different briefs and appeals. I mean at some point
it gets chaotic.

M: I think he was wrong. As a practicing non-attorney, I can say that I think he was
wrong. We were not in a constitutional crisis, we were [applying the] constitution
[and the judicial statutes]. [While what] was happening here that had never
[occurred] before, [it] did not mean that we were going to be in a crisis. In fact, we
should all take heart and find security in the fact that, unlike what you would have
found in many other countries, there were no guns on the street. Despite the
uncertainty of the outcome of the election for a month and despite all the rhetoric
that was on the airwaves, this country, and our state, elected a president in a
very calm fashion. I think we ought to be proud of that.

P: On that note we'll end the interview. Thank you very much for your time.

M: My pleasure. Thank you.

[End of the interview.]


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